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N E W

atjrtligemmt of t]&e %m,

BY MATTHEW BACON,

OF THE MIDDLE TEMPLE, ESQ.

THE SEVENTH EDITION, CORRECTED;

WITH LARGE ADDITIONS, INCLUDING THE LATEST S'tATUTES AND AUTIIOBITIFS.
VOLUM_ES II. III. AND IV. (EXCEPT THE ADDENDA,)

By sir henry GWILLIM,

OF THE MIDDLE TEMPLE, KNIGHT ;
LATE ONE OF THE JUDGES OF HIS MAJESTY'S SUPREME COURT

AT MADRAS. »

VOLUMES I. V. VI. VII. AND VIII. AND THE ADDENDA TO Tilt:
OTHER VOLUMES,

By CHARLES EDWARD DODD,

OF THE INNER TEMPLE, ESQ. BARRISTER AT LAW.

IN EIGHT VOLUMES. ,^5

VOL. L ^\>\.

^\.

LONDON:

PRINTED BY A. STRAHAN,

LAW-PRINTER TO THE KINg's MOST EXCELLENT MAJESTY;

FOR J. AND W. T. CLARKE; LONGMAN, REES, ORME, BROWN, AND GREEN;
T. CADELL; J. RICHARDSON ; J.M.RICHARDSON; R.SCIIOLEY; C. J. G. AND F.

rivington; Baldwin and cradock; w. walker; saunders and benning ;

A. MAXWELL ; S. sweet ; H. BUTTERWORTH ; STEVENS AND SON^ G. WILSON ;

e. Hodgson; r. pheney ; j. richards; e. nunn ; and a. and r. spottiswoode.

1832.

HENRY,
BARON BROUGHAM AND VAUX,

OF BROUGHAM, IN THE COUNTY OF WESTMORLAND,
LORD HIGH CHANCELLOR OF GREAT BRITAIN,

TliriS EDITION

BACON'S ABRIDGEMENT OF THE LAW

IS,

(with his permission,)
most respectfully dedicated by the editor,

CHARLES EDWARD DODD.

Temple, N^wemhcr, 1831.

A 3

PREFACE

THIS SEVENTH EDITION.

The last edition of Bacon's Abridgement was published
in 1807; but that edition was merely a reprint of the
fifth edition, published in 1798. The task, therefore,
devolved on the Editors of the present edition, of in-
corporating into the various titles of the work the
decisions and statutes which, during thirty-three years,
have so materially qualified, confirmed, and reversed
the law as laid down in the last corrected edition.
To the profession, for whom the work is designed,
the extent and labour of this task will in a great de-
gree account for the delay which has occurred in the
publication of the present edition. The second, third,
and fourth volumes were prepared by the former Editor,
Sir Henri/ GwilUm, above ten years since, and were
then printed ; but his ill state of health preventing
his proceeding with the work, the completion of it was
entrusted, several years ago, to the present Editor, who is.
responsible for the first, fifth, sixth, seventh, and eighth
volumes, and for the " Addenda," which it became
indispensable to append to the three volumes printed
by Sir Henry Gwillim. The improvements made by that
gentleman in the edition of 1798, in correcting and
verifying the references, in retrenching repetitions and
redundancies, in expunging unintelligible passages, and

A 4 generally,.

Viii PREFACE TO THIS EDITION".

generally, in purifying and perfecting the text, left
comparatively little to be done by the Editors of this
edition, except (what indeed was of itself difficulty and
toil sufficient) the introduction into the work of the
decisions pronounced by the several courts and of the
statutes enacted since the edition of 1798. In exe-
cuting this task, in the five volumes for which he is
answerable, the present Editor has endeavoured to
adapt the new matter to the old text in the moht
convenient and suitable shape, so that the text and
notes may present a connected and accurate view of
the former state of the law, of the changes it has under-
gone, and of its condition at this day on the various
subjects treated of. Where the new matter introduced
is short, where it forms a concise qualification, confirm-
ation, or contradiction of the old text, it is generally
inserted in the shape of a note, in which form the
Editor has also carefully printed all observations or
inferences not resting on the certain authority of de-
cided cases. Where, however, the additions, whether
of adjudications or statutes, are of considerable extent,
it seemed more convenient to engraft them into the
text of the work than to crowd them into the less
convenient form and the minute type of notes. In all
cases, whether they occur in the body of the work or
in the notes, the additions to this edition are carefully
distinguished by being inserted within these marks |[ ||,
a mark used both by Sir Henry Gwillim in the three
volumes which he edited, and by the present Editor
in the five volumes for which he has stated himself
to be responsible. The marks [ ] distinguish the
additions made by Sir Henry Gwillim in the edition of
1798, and the marks *, t, t, indicate the labours of
former editors.

The Editor has in some instances availed himself of
extracts from Treatises of acknowledged accuracy or

authority

PREFACE TO THIS EDITION. IX

authority on the subjects under consideration. Where
the result of a series of decisions has been concisely
stated by a text writer intimately acquainted with the
particular branch of law, the Editor could not hope to
improve on such an abridgement either in accuracy or
perspicuity. He believes that in all such cases he has
acknowledged the obligation by reference to the author
to whom it is incurred.

It did not fall within the scope of the Editor's duty
to render the work a complete modern abridgement of
the law, desirable and useful as such a work might be
to the profession. He has, therefore, on the one hand,
neither added new titles to the work, nor has he, on
the other, felt at liberty to expunge matter Oh the
ground of its having grown obsolete and useless, or
of its being now only useful to the historical and curious
enquirer. Of this description must be considered a
great part of titles " Appeal," " Papists and Popish
Recusants," " Pr^munire," " Scandalum Magna-
TUM," *' Summons and Severance," " Wager of
Law," " Warranty." The Editor conceived himself
to stand, as to this point, in a very different situation
from the author of an original work.

Though the Editor has introduced no new titles, he
has inserted subdivisions of some of the heads, and has
also, in some instances (as in titles " Agreement,"
"Annuity," "Bankrupt," "Legacies and Devises,"
" Stamps,") occasionally transposed and rearranged
the matter, for the sake of greater perspicuity and
facility of reference. He has been careful, however,
not to confuse his own additions with the previous
text of the book, but has invariably marked, as above
mentioned, whatever rests on no better authority than
his own.

Althougli

X PREFACE TO THIS EDITION.

Although the Editor has endeavoured to consult
l)revity in tlie additions as much as was consistent with
perspicuity, and with the style of dissertation in which
the Abridgement is written, the work has necessarily
been enlarged by the addition of a volume, and by
much increasing the bulk of all the volumes. The
extent of the additions to this edition may be estimated
from the fact, that the cases in the index are about
twice the number of those in the former edition, and
there is an increase of about fifteen hundred pages.

The Editor begs to acknowledge here some very
useful assistance which he received from Mr. Blanshard^
Barrister at Law (now of York,) in preparing the titles
in the fifth volume from " Legacies and Devises "
to " Monopoly," both inclusive.

The Editor cannot send the work forth to the pro-
fession without earnestly bespeaking their candid indul-
gence for its errors, omissions, and imperfections. He
can hardly venture to hope that these are not numerous
in a work so extensive, so difficult, and so multifarious,
which has often exceeded the Editor's powers and has
always tasked his industry, and which has been neces-
sarily completed in the intervals of his professional
avocations as a Special Pleader and a Barrister.

C. E. DODD.

King's Bench Walk, Temple,
Michaelmas Term, 1831.

PREFACE

THE FIFTH EDITION.

It was the hard fate of the excellent writings of the
late Chief Baron Gilbert, to lose their Author, be-
fore they had received his last corrections and improve-
ments, and in that unfinished state to be thrust into the
world, without even the common care of an ordinary
editor. Those invaluable tracts were for the most part
published not only with all their original imperfections,
without any attempt to supply their defects, or explain
or correct what seemed in them perplexed or erroneous ;
but with all the improprieties and inaccuracies which
the ignorance and neglect of the amanuenses, whom
the Author's infirmities compelled him to employ, could
accumulate upon them.

Some of those tracts, it is well known, fell into the
hands of the Compiler of the present work, and from
them the materials of the greater part of it, as far as
the title "Simony," were collected. Unfortunately, our
Compiler had not the most happy dispositions for the
work he had undertaken, nor were those parts of the
learned Judge's writings which appeared in the New
Abridgement much better prepared to meet the public
eye, than the other tracts, which had been published by
persons to whom chance or an undistinguishing choice
had committed the inspection of the press.

Xii PREFACE TO THE FIFTH EDITION.

In the course of the work, Mr. Bacon seems to have
made different use of the materials that lay before him,
sometimes taking the tracts at length, sometimes giving
only extracts from them : but whether he inserted the
whole of any tract, or only a part of it, we have
reason to think, he inserted it just as he found it. If
the Author, in different treatises, in order to make
each treatise perfect within itself, introduced the same
matter conveyed in the same expression, the Com-
piler implicitly copied it, and under different titles of
his work introduced the same passages to the extent of
several pages. If the manuscripts were in any part
defective, if the subjects were but partially treated of
in them*, the titles which related to those subjects were
left equally defective in the Abridgement. The Com-
piler seemed to have as little inclination to supply the
deficiences of his Author, as he had sagacity to mark
or correct his errors.

With these defects and redundancies the work has
passed through three subsequent editions ; the only
anxiety discoverable in the later editors being to crowd
it with reference to cases inapposite to the point in the
text, and which, at the best, had only some relation to
remote branches of the general subject.

In preparing the present Edition for the press, it has
been the first care of the Editor to retrench what was
redundant in the work, and to expunge what appeared
to him impertinent In retrenching, he has substituted
reference for repetition ; and where the same matter
which had occurred under one title seemed naturally to
fall under and belong to another, he has referred to the

* It should seem, from some manuscript treatises of this author in
the possession of Mr. Ilargrave, which have never appeared in print,
tliat lie had formed and actually executed the comprehensive plan
of wriimg distinct treatises upon every branch of the law, except
the criminal jurisprudence.

preceding

PREFACE TO THE FIFTH EDITION. XIU

preceding title, instead of introducing it again. In ex-
punging, he has not indulged himself in any arbitrary
or capricious licence ; nor has he presumed to strike out
one supervenient authority of a later editor, before he
had satisfied himself by careful examination that it had
no pretensions to the place it affected to occupy.

In the original text he has rarely ventured to make
any alteration, except where it was manifestly corrupted
by the carelessness of the copyist or of the press, or
rendered perplexed by the want of due attention to
punctuation. One or two passages, indeed, where the
meaning could not be collected either from the ex-
pression or the references, he thought himself at liberty
to expunge. Conjectural emendation is not admissible
in a work of this kind ; and he trusts no man will com-
plain of the loss of nonsense.

He has attempted to mark, and guard his readers
against, the mistakes of the author : but he is sensible
that many, too many, erroneous passages have been
suffered to pass without observation. In the course of
so long a work, it cannot be expected that the exertions
of the mind should be always equal, or that it should
always be alike disposed to proceed in the task it had
undertaken. It must occasionally sicken at some parts
of the labour as beneath its attention, and shrink fi-om
others as beyond its powers. It is well known that the
most obvious errors sometimes most easily escape de-
tection. In reading, every man must have felt that his
mind is sometimes more attentive to its own precon-
ceptions on the subject, than to the ideas of the author j
and the better it is satisfied with the rectitude of the
former, the more steadily it pursues them, and the less
sensible it is of the aberrations of the latter. The
form, too, in which error presents itself to us, may help
to facilitate its escape : it is more likely to pass silently
and unobserved when proposed in the form of a simple

affirmation,

xiV PREFACE TO THE FIFTH EDITION.

affirmation, than when it challenges our enquiry in that
of an interrogation. We often readily admit upon a
statement what we should instantly deny, if it were
offered to us in the way of question.

It should be observed, that, even where the Editor
has detected error, he has not always immediately
apprised his reader of it : he has sometimes subjoined
his remarks upon the erroneous passage at the end of
the division where it has occurred: he has at other
times left its confutation to its inconsistency with the
better-considered and more recent determinations which
he has afterwards introduced.

In the additions he was to make, he found it necessary
to prescribe to himself some limitations : he therefore
in general attempted no more than to fill up the chasms
that were left under those general divisions into which
lie found the work already disposed, and then to engraft
upon the whole the later decisions. He has indeed given
two new titles, viz. " Pischary," and " Set-off ; " and
he knows that he might have given others, as the work is
at present far from a complete abridgement of the law.
But he had neither time nor encouragement to go far-
ther. Besides, much of the learning which is wanting,
is to be met with in books that are in every one's hand:
and what was to have been gleaned from other writings
of the same kind, though it might have increased the
bulk of the work, would not have added to its intrinsic
value, or have done any credit to the industry or in-
tegrity of the Editor. If there should be some who
complain that more might have been done, there will
be others, he fears, who will say, perhaps with more
justice, that much of that which has been done might
have been spared.

As the Abridgement is written in the style of dissert-
ation, he has in his additions availed himself largely of

those

PREFACE TO THE FIFTH EDITION. XV

those tracts which have been pubHshed upon different
parts of the law, and received the approbation of the
profession. He has been in general careful, whenever
he has made an extract from any of those tracts, to
acknowledge the obligation by reference to the work
itself. If he has in any instance (and he may have done
so in many) neglected to make such reference, the
author may be assured that it was by mere accident or
inadvertency, and not from any design to take to him-
self the credit of another man's labours. But wherever
such omission may have been made, let not the author
be under any uneasiness : the world will too easily
distinguish what properly belongs to the Editor.

He thought himself at full liberty to transplant into
the work as much of the Chief Baron Gilberts tracts
as he had occasion for : it was in truth only re-uniting
disjointed members, many parts of the work itself being
only parts of several of those tracts. One of the learned
Judge's treatises, viz. the Treatise upon the Doctrine of
Remainders, from which the collections in the Abridge-
ment under that title were extracted, he has been enabled
to give entire by the kindness of Mr. Hargrave. The
manuscript had been purchased by that gentleman at no
inconsiderable price ; but, disdaining all private con-
siderations where the interests of that profession, of
which he is so distinguished an ornament, seemed in
any degree concerned, he made a voluntary tender of

to the Editor, as soon as he was informed that he
was engaged in preparing another edition of the present
work. By this generous act, Mr. Hargrave has highly
flattered the Editor, and has added one more to the
many obligations his profession were already under
to him.

The Editor has been anxious to separate his own
additions, and those of preceding editors, from the
original work. Whatever, therefore, he is responsible

for.

XVi PREFACE TO THE FIFTH EDITION.

for, is included between crotchets, thus [ ] ; whilst the
insertions of the other editors are distinguished by one
or other of these marks, *, t, t. It is well known
that Mr. Bacon did not live to carry the work any
farther than to the title *• Sheriff," inclusive, and that
the remainder was added by Mr. Serjeant Sayer and
Mr. Rujfhead. It was not thought necessary to give
any distinguishing marks to this latter part : it seemed
sufficient to give this intimation of it.

HENRY GWILLIM.

Boswell-Court,
Michaelmas Term, 1 797.

ABATEMENT.

ABATEMENT, in the general acceptation of the word, Gilb. Hist,
signifies a plea put in by the defendant, in which he shews fpor'the^Jeri-
cause to the court why he should not be empleaded ; or, if yation and dif-
empleaded, not in the manner and form he now is. ferent senses

of the word
Abatement in our law, see sBl. Comm. 168. Co. Litt. 134. b. 181. a. 242. b. 271. a. 277. a.
Finch's Law, 195. Pleas to the jurisdiction, and to the person of the plaintiffj are pleas in
disability, and only in the nature of pleas in abatement. Pleas in abatement, strictly such, are
pleas to the writ. Finch's Law, 362. 3 Black. Comm. 301.] For the order of pleading, see
title Pleas and Pleadings, (A).

We will consider this title in the following order, though
several of its divisions are more largely treated of under their
proper heads.

(A) Of Pleas to the Jurisdiction of the Court.

(B) To the Person of the Plaintiff.

1. Outlaw?!/.

2. Excommunication.
S. Alienage.

4. Premunire.

5. Popish Recusancy.
II 6. Coverture.^

(D) Of Misnomer and want of Addition.

(E) Of Abatement by the Demise of the King.

(F) By the Death of Parties.

(G) By reason of Coverture.
(H) By a Defect in the Writ.

(I) By the Writ's not agreeing with the Count.

Vol. I. B (K) Where

ABATEMENT.

(K) Where the Writ is abated de Facto, or only
abateable.

(L) Where the Writ shall abate in toto, or in Part.

(M) Where it shall abate by Reason of another Action
brought for the same Thing.

(N) Where a Person may plead in Bar, or in Abate-
ment.

[(O) Dilatory Pleas, how restrained.]

(P) Of the Manner of pleading in Abatement, and
the Proceedings and Judgment on such Plea.

[(Q) Of the Writ by Journies Accompts.]

(R) Foreign Plea.

(A) Of Pleas to the Jurisdiction of the Court.

Gilb. Hist. A PLEA to the jurisdiction of the Court must be put in be-

^•^- '^"^' fore (a) any imparlance, for by craving leave to imparl, the

7 Barnes defendant submits to the jurisdiction.

334. [(a) But after a general special imparlance, that is, an imparlance with a general saving
of all manner of exceptions, it seems that it may be pleaded : but the granting of such an im-

Cirlance is discretionary in the court, and it cannot be had but by special motion. Grant v.
ord Sondes, 2 Black. R. 1094. Wentworth v. Squib, 1 Lutw. 46. 12 Mod. 529. S. C. Clap-
ham V. Lenthal, Hardr. 365. Barrington v. Venables, Raym. 34.] ||And if the defendant
plead such a plea after a special imparlance, with a saving only of all exceptions to the writ,&c.
though the plea is demurrable it is not a nullity. Godefroy v. Jay, 6 Bing. 616.11

The defendant must plead in propria perso?id, for he cannot

plead by attorney without leave of the Court first had, which

leave acknowledges the jurisdiction; for the attorney is an officer

of the Court ; and if defendant puts in a plea by an officer of the

Court, that plea must be supposed to be put in by leave of the

Court.

Co. Litt. 127. He must make but half defence; for if he makes full defence

Gilb, Hist. mtando et vhi curia consideraveriL &c. he submits to the iurisdic-
C. P. 188. See ;:. c ^\ r> .. J ^

Ventr.354. tion of the Court.

Alexander v. ijBut a plea which goes no farther than " defending the force

Mawman, and injury when, Src." is not a full defence, the " 4"^" implying a

w'ilk * ^ ^° ^"^^ ^^ * ^^^ defence according as the one or the other is re>

VVilIi?mI', quisite.ll

8 Term R. 63 1. ; and 3 Bos. & Pull. 9. (a) ,

Doctr. PI. 224. Every plea to the jurisdiction must state another jurisdiction.

Fabrigas, Cowp. 172. Earl of Derby v. Duke of Athol, 1 Ves. 203. 2Ves.357. Rex v.
Johnson, 6 East, 585.

Attorney Ge- [A plea that the suit is of visitatorial cognizance, must shew

the

(B) To the Person of the Plaintiff. S

the extent of the visitor's authority, and aver that he is able to neral v. Tal-
do complete justice.] ^Atk.IS.

S. C. Green v. Rutherforth, 1 Ves. 474. and Rex v. Bland, B. R. Mich. 14 G. 2. there cited.

See tit. Courts, and their Jurisdiction in general.

(B) To the Person of the Plaintifil

1. Of Outlawry,

/^UTLAWRY in the plaintiff is a good plea in abatement, Gilb. Hist.
for he thereby loses his liberam legem, and is out of the pro- C. P. I96,
tection of the law; for not having been amenable to the law, he Jq!* ^ l^m*
ought not to have any privilege or benefit from ^t. 12.' But no '

man shall be said to be outlawed till the return of the exigent. Bro. Nonability, 25. 28.
Ass. 49. Dyer, 222.

But outlawry does not entirely abate the writ, but is only a Co. Litt. 128.
temporary impediment that disables the plaintiff from proceed- q°j ^-^^ q^
ing ; for upon obtaining a charter of pardon, or reversing the 97. *
outlawry, he is restored to his law, and can oblige the defendant
to plead to the same writ.

Outlawry in a personal action goes only to personal actions, in Doctr. PL 597.
respect of the person ; but outlawry in felony goes to actions ge- *^^^^^ ^^ ^'
nerally.

See further tit. Outlawry (D), 3. 2. 3.

II And as to pleading outlawry in equity, see ibid, and 1 Sim.
& Stu. 225. 720. 1 Ves.& B. 184. 1 Vern.l84.||

2. Excommunication.
See tit. Excommunication (C), (D).

3. Alienage.
See tit. Aliens (D), (E).

4. Premunire.
Persons attainted of a premunire are incapable of bringing Gilb. Hist,
any action, for they are out of the protection of the law. ^- V; ^2,^*

See tit. Premunire. Co. Litt. 129.

5. Popish Recusancy.

This disability of popish recusancy convict is by virtue of the ^ p*H!f'*

statute 3 Jac. c. 5. which disables to all intents, ^c. except where l j Ray^,

the party sues for lands, tenements, leases, annuities, rents, and 245. 5 Lev.

hereditaments, or the issues or pi'ofits thereof, which are not 308. 8 Mod.

to be seised into the hands of the kinff, his heirs or successors. ^\ \^'^' ^

o' li.ntr. 19. bee

18G.3. C. 60. 31G.3. C.32. 43G.3. C.30.

See tit. Popish Recusancy.

1)6. Coverture. Seepos/.H

B 2 (C) Of

4 ABATEMENT.

2 Mod. 297. 'T^HE officers of each court enjoy the privilege of being sued
Vaug. 155. J- jjj^jy jj^ those courts to which they respectively belong; the
2 Roll. Abr. reason whereof is, because of the duty they are under of attend-
272. Lut. 44. ing those courts, and lest their clients* causes should suffer if
639. 2 Inst, they were drawn to answer to actions in other courts.

551. 4 Inst.

71,72. Crom- Jur. Courts, 11. Gilb. Hist. C.P. 209. 212. What persons are privileged,
vide head of Privilege, Vol. VI., and for precedents of pleas of privilege, vide Thomp. 4. Rob.
Ent. 199. Rast. Ent. 106. 178. 472. Brownl. 161. 167. 168. Hern. 3. 3 Inst. Clericalis,

32 35. "Where they are not obliged to put in special bail ; and where bail must be put in

when they sue, vide head of Bail in Civil Causes. ||As to pleas to the person of the defendant
in courts of equity, see Beames's Plead. Eq. 129., &c.||

Lutvir. 44. 639. [Whenever therefore an attorney is sued out of his own court,

Bro. Traverse, jjg jj^^y say that he is attorney, Sf-c. of another court, and conclude

with wide non intendii qicod cur,, 8^c. hie placit. jn-cedict. versus cum

cognoscae velit aut debeat, Sfc. But the plaintiff may reply that

he is a husbandman, Src. in the country, and traverse his being

an attorney.

o Wils 42. ^^^ privilege is not the privilege of the officers, but of the

228. 1 Sir. suitors ; and attendance being the ground and foundation of

546. 4 Bur. it, it must be alleged that the officers are actually attendant

2109. Andr. jj^ their respective courts, otherwise the plea will not be al-

45. 1 Bos. & 1 1 -, ^ ^

P«1.4. llSee Jowed.]

head Privilege (B), Vol. VI.||

Saund. 67, 68. But the plaintiff must have the same remedy against the officer

r^Mv^'H^ ^^^ *" ^^^ ^^^ court, as in that where he sues him ; for if money be

Q p 209 attached by foreign attachment in the sheriff's court of London,

210. Co7i/r. <^he officer shall not have his privilege; because in that case the

Lodge's case, plaintiff would be remediless.

2 Leon. 156.

Dy. 217. a. Watkins v. Hews, 1 Sid. 362. ; [and vide Ridge v. Hardcastle, s Term R. 417. acc^

Saund. 97. So, if a writ of entry, or other real action, be brought against

r P Qi n' Sn ^" attorney of the King's Bench, he cannot plead his privilege ;
if an attorney* because if this should be allowed, the plaintiff would have a right
of the Com- without a remedy ; for the King's Bench hath not cognizance of
mon Pleas be real actions,
sued in an ap-
peal, he shall not have his privilege ; for his own court hath no cognizance of this action ;
nor if sued as baU. Rep. & Cas. Pract. C. P. 64. Gilb. Hist. C. P. 210.

Gardner v. [The jurisdiction of the court of conscience for Westminster ex-

4^°?V?ltshire ^^"^^ '° attorn ies; but not that of the county comt oi Middlesex,
V. Lloyd, o'' of the London court of conscience ; and a defendant who re-

Dougl. 581. sides within the jurisdiction of this last court is not entitled to
?"d *^^ liw. ^^^^ benefit of the statute of 23 G. 2. c. 33., if the plaintiff is an
Board v. Par- attorney (a), unless the plaintiff wave his privilege by declaring
ker, 7 East, as a common person.]

35. Vid. conlr. Silk v. Kennet, 3 Burr. 1583. and 382. notes, (a) Tagg v. Madan, 1 Bos. &
Pull. 629. Pivrker v. Vaughan, 2 Bos. & Pull. 29.

The

The privileges which the courts indulge their officers with, is Hob. 177.
restrained so those suits only which they bring, or which are ^^ \{^^
brought against them in their own right; for if they sue or are c. P. 211.
sued as executors or administrators, they then represent common 2 Roll. Abr.
persons, and are to have no privilege. U^- P^-^s*

17Vin. Abr. 517. pl.2. Vent. 299. Godb. 10. pi. 13. Dy. 577. pi. 30. Latch. 199. Brownl
3V. 47. 12Mod.516. Ld.Raym. 533. Salk. 2. pl.4. 7. pi. 18. 2 Sid. 157. Dy. 24. 150. in
marg. Sav, 20. pi. 49.

So, if an officer of one court sue an officer of another court, Gilb. Hist,
the defendant shall not have his privilege; for the attendance of q^^^qI'
the plaintiff is as necessary in his court, as that of the defendant pi 95,
in his : and therefore the cause is legally attached in the court Brownl. 37.

where the plaintiff is an officer, (a) [2 Black. R.

^ ^ ' 1325. ||See

9 Price, 16.11 (^) If^ privilege be pleaded to privilege, the court will not determine it on
motion to set aside the plea, but oblige the party to demur. 2 Str. 857. 1 Bl. Rep. 34.] ||And,
where one attorney sued another of the same court by attachment of privilege and held him to
bail, the Court of K. B. stayed the proceedings upon motion. However, considering this mode
of application as a substitute for a plea in abatement, they did so without costs. Barber v.
Palmer, 6 Term R. 524. Nicholls v. Earie, 8 Term R. 895.||

So, if a privileged person bring a joint action, or, if an action q\\\,^ Hist,
be brought against him and others (i), he shall not have his pri- 212. Dyer,
vilege : but this is to be understood where the action is joint, and ^77. p. 30.
cannot be severed ; for if the action can he severed, without 2 Roll Abr
doing any injury, the officer shall have his privilege. Qu. 275. 2 Lev!

129. Vent. 298, 299. j|See Robarts v. Mason, 1 Taunt. 254. {b) But an attorney sued
jointly with a person having privilege of parliament, does not lose his privilege. Ramsbottom
v. Harcourt, 4 Maul. & S. 585.1|

[So in equity, if a suit be instituted against different persons, Mit. Eq.
some of whom have privilege, and some not (c), or, if one de- ^l* ^ ^f/
fendant be not amenable to the particular jurisdiction, the plea Univerntu
of privilege will not be allowed.] (K), p. 3.

An officer shall not have his privilege against the king {d) ; for Fortesc. 342.
as the executive power is lodged in the king, it would be unrea- j"', g^o'n
sonable that his court, which gives relief to private persons, should ^^J. 274.
protect any subject from being brought to justice for offending Gilb. Hist.

against the laws, which concern the whole commonwealth. C. P. 208.

°_ {d) But man

action qui tarn at the suit of an informer, he shall have his privilege. Lil. Reg. 7. 3 Lev. 598.
Lutw. 193.

If an attorney of the Common Pleas be in custodia maresch. for , ^ n * -eu^
/• I -1 1 • f ^ 1 111- • •! / \ (^) But II he

want 01 bail at the suit 01 A.^ he may plead his privilege, {e) i,e in cusiodid

"mareschal, at the suit of A., and B. declare against him in cmtodid viarcschal. if he has
waved his privilege as to A., he cannot take advantage of it against B. For this vide 2 Roll.
Abr. 275. pi. 7. Salk. 1 pi. 3. 5 Mod. 3ip. sLev. 345. Ld. Raym. 135. {[l Stra. 191. 4 Barn.
& A. 88.||

After a general imparlance, an officer cannot plead his privi- Bro. Priv. 25.

lege [g)y because by imparling he affirms the jurisdiction of the S2 H.6, 7

court ; but by the better opinion it seems, that after a special im- u"^" P" ,
1 ,•' 11I--.1 /j\ ^ Hard. 565.

parlance he may plead his privilege, [h] Lutw. 46.

Salk. 1. Str. 522. ||(g) If a plea in abatement be pleaded after a general imparlance, tiie plain-
tiff may either demur to it generally, or treat it as a nullity, and sign judgment as for want of

B 3 a plea.

^ ABATEMENT.

a plea. Duddle v. WUson, 6 Term R. 369. Doughty v. Lascelles, 4 Term R. 520. But if
the bill is filed in vacation entitled of the preceding term, the defendant may plead in abatement
within the first four days of the next term. Holme v. Daiby, 5 Barn. & A. 259. 1 Chitt. R.
704.; and see 2 Will. Saund. 2. no^d. (5th edit.)|| (A) [By a special imparlance, in this
case, must be understood a special general imparlance. Vide tupra (A), notes.] Plea of
privilege without affidavit set aside. 2 Str.738. ||See Tidd. 640. (9th edit.), and /?04/.(P).||
It must be pleaded, it cannot be allowed on motion. 2 Salk. 544. 1 Wils. 306.] \^Sed vide
xuprk Barber v. Palmer, 6 Term R. 524. ; and Tidd's Prac. 81. (t)th edit.)|l

s Black. R. [An attorney who is arrested by capias on a special original

'°Sh ^^^^^^^ out of the same court, is not entitled to his discharge on serving

the sheriff with a writ of privilege, but must plead the privilege

in abatement.
Comerford jjg n^^y plead it as well to an action on a bill of exchange, as

Doucl 312. ^^ ^"y other personal action.

Fortesc. 343, An attorney has not any privilege to be sued in Middlesex
2027 * ^^^' **"^y * ^^ ^^ enough that he be sued in his own court]
Salk. 1. pi. 2. In an action against B. he pleaded quod ipse est unus attomat.
Peaso V. Par- ^^^ domi?ii regis de B. without saying fuit tempore impetrationis
lece should be ^'"^'^ (^) * ^"^ ^ respondeat ouster was awarded,
pleaded — provi patet per recordam. Ibid. \\{a) The privilege attaches only upon prac-
tising attornies. See the ride of Court of 1654. It is founded upon a presumption that the
attorney is already in court attending his duty, so that the issuing of process merely to bring
him there would be nugatory. But this reason does not apply to an attorney who is not prac-
tising at the time. Brooke v Bryant, 7 Term R. 25. Dyson v. Birch, 1 Bos. & Pull. 4. ; and
see S Maul. & S. 605.||

Stokes V. II The courts will take notice of the privileges of their officers,

™"'"» so far as to support a plea, notwithstanding little informalities or

' ' want of precision, provided enough appear in it to shew that the
defendant is entitled to privilege.
(h) 1 Lut*r. Under tlie head of Pleas in Abatement to the person of the

23. 5 Inst. defendant, may also be included coverture in the defendant (6),
(c) i Inst CI °^ ^^^ ^^ plaintiffs or defendants, suing or being sued as hus-
69. (d) Id. 51. band and wife, are not married (c), or any other plea for want of
Rastal.325.a. proper parties, as that there is an executor (rf), administrator {e),
(<?) 3 Inst. CI. or other person (h) not named.
53. Rastal, r v /

824. (g) 3 Inst- CI. 53. 119. 1 Lutw. 696. ; and see 1 East, 634.

{h) 2 Will. If an action be brought for a tort by one of several joint
i^e" 1 Ve\ tenants or tenants in common, the defendant must plead the non-
167! 1 Ld. joinder of the others in abatement, or he cannot take advantage of
Raym. 127. the objection. (Ji)

S Wils. 414.

. , And so also, if an action on a contract is brought against one

5 Burr. 2611. ^^ several joint contractors, the defendant can only take advan-
2 Black. R. tage of the nonjoinder by plea in abatement, {i)
»47. 5 Term R.649. 1 Will. Saund. 291. c. d. (5th edit.)

*) Moo. & The defendant cannot, however, plead a secret partnership in

^alk. 88. abatement, {k)
\ Stark. Ca. 338. 5 /J. 8. ; ted vide contrh, 5 Taunt. 609. 1 Marsh. 246.

If an action be brought against a carrier in case for not safely

carrying

(D) Of Misnomer, and want of Addition, 7

carrying goods, the defendant may plead in abatement that his / v ^p p
partners ought also to have been sued, (a) ggg 2 New

R. 565. ; but see 5 Term R. 649. 2Chitt. R. 1. 6M00. 141. 3Brod.&B.54. 2Marsh.485.;
from which it seems that if the action on the case is grounded on the custom of the realm, it
is otherwise; and see 1 Will. Saund. 291. e. (5th edit.)

If an action of debt be brought on the stat. 9 Ann. c. 14. to
recover back money won at play, the defendant may plead in
abatement that the money was due from others not named as well (i) 7 Terra R.
as himself, {b) 257.

In these cases, the defendant, if required, must deliver to the i<^) ^ Bam. &
plaintiff the places of abode, and additions of the parties jointly i^Younce
liable, or the Court of King's Bench will set aside the plea, (c) ^ j 257.

In an action on the case against a common carrier, for not (d) 2 Chitt.
safely carrying a passenger, the defendant cannot plead in abate- ^- ^•' ^^ '®®
ment the nonjoinder of a co-proprietor. (d)\\ g^g g j^^^^^

141. 5Brod.&B. 54, 9Price,408.
See further tit. Attorney and Privilege.

(D) Of Misnomer, and want of Addition.

J^ISNOMER is a good plea in abatement ; for since names [(<?) It is'plead-

are the only marks and indicia which human kind can ^^^^ only in
understand each other by, if the name be omitted or mistaken, ^ 31^^^^'
there is a complaint against nobody, [e) 1120.] j|That

is where the process is not bailable. 7 Dow. & Ry. 258. Tidd, 44ff. (9th edit.) But if the
defendant has been arrested by a wrong name, the court will set aside the proceedings.
1 Marsh. 477. 4 Maule & S. 360. 1 Chitt. R. 282. ; sed vide 4 Barn. & C. 970. 3 Bing.
296.; and discharge him if in custody. 2 Taunt. 399. 4 Maule & S.560. ; but see 1 Price,
277. 391. 2 Price, 328. Tidd, 447. (9th edit.)])

But, though a defendant may, by pleading in abatement, take Finch. 565.
advantage of a misnomer when there is a mistake in the writ or wh '^'e^K^h" '
declaration, as to the name of baptism or surname ; yet in such appearing by
a plea he must set forth his right name, so as to give the plaintiff that name, or
a better writ, {g) not taking ad-

vantage of it,
such mistake will be aided, vide tit. Error. Vide Yelv. 112. ||Tidd,447. 637. (9th edit.)||
Must, in setting forth his name, say, that by such name he was known at the time of the writ
purchased. Skin. 620. pi. 17. Vide Salk. 7- pi. 17. Goulds. 86. (g) So, if he plead a mis-
take in the addition, he must set forth his right addition. 2 Stra. 816. 10 Mod. 208.
2Ld. Raym. 1178. 1541.]

One defendant cannot plead misnomer of his companion ; for Lutw. 36.
the other defendant may admit himself to be the person in the
writ.

The defendant, though his name be mistaken, is not obliged ^^f^* ^^^^*
to take advantage of it ; and therefore if he be enipleaded by a pretended^**"
wrong name, and afterwards empleaded by his right name, he himself to be
may plead in bar the former judgment, and aver that he is una Earl of Buck-
et cadcm persona. ingham, was

arrested by
the name of J. Villafs, armiger ; and on motion, the court gave him leave to put in bail, with-
out joining in the recognizance, and thereby not estop himself. Vide Salk. 5. [)1. 7. Ld. Raym,
64.249. 7 Mod. 58. Stra. 205. 2 Stra. 811. Ijlf a party make a bond by the name of j4. jff.,
of C. in the county of D., and in an original writ on the bond he is described accordingly,
and is outlawed, he cannot reverse the outlawry on the ground that he was not conversant
in C. in the county of Z)., and that there is no such place, for he is estopped by his bond.
Bonner v. Wilkinson, 5 Barn. & A. 682.j|

B 4 In

8 ABATEMENT.

rw» Cro. In case of felony at common law, if a person were indicted by

Can 104. a wrong name, he could not plead mistwmer, but was obliged to

« in»t*67o * p^^°^ '" ^^^ ^^^""y 5 ^°^ ^^^ ^"^' ^^^"^ ^^°'*" *^g^^"^^ *^^ p^^'y

Sid. 4a Lite, present, it was thought that there could be no injury by the mis-
R. 1. rtde nomeTi as there might be, where the party appeared by attorney ;
head of J^ and felons generally co by no certain name, nor have they any
nomer and n j i i •." • °

^daWan, and fixed habitation.

9 Hawk. P.C. 186, 187.; that the party accused may take advantage of misnomer, or the want
of additioH, bat yet must plead over to the felony ; but though such plea be found for him, he
is not to be discharged, but must be indicted over again: neither shall such plea, if found
against him, be peremptory, but he shall be tried on his plea in chief. |jBy 7 G. 4. c. 64. § 19.
no indictment or information shall be abated by reason oC any dilatory plea of misnomer, or of
want of addition or wrong addition, if the court shall be satisfied by affidavit of the truth of
Buch plea ; but the court shall amend the indictment, &c. and call on the party to plead
thercto.|]

|]A plea of this But it is now necessary to set forth the state, place of abode*
statute, and ^jj^ dignity of the person empleaded, lest an innocent person*
tion had been ^y hi''^ving the same name with the real defendant, should
given to the suffer ; therefore the 1 H. 5. c. 5. enacts, That in all personal ac-
defendant tions, appeals, and indictments there shall be added to the
cither in the names of the defendants their estates, degrees, mystery, and place
writ or in the ©* abode.

subsequent part of the declaration, was considered as a nullity by the Court of C. P. and the
plaintiff haa leave to sign judgment. Gray v. Sidneff, 3 Bos. & Pull. 595. Murray v. Hub-
l>art, 1 Bos. & Pull. 645. Or he might have moved to quash it. Wallace.v. Duchess of Cum-
berland, 4TermR.371. Deshons v. Head, 7East,385.; and see 2 New R. 188. 4 Taunt.
668.||

(a) Mistakes Additions (a), which are inducements to the action, must be

in such addi- ^^de Use of; as, if one is liable as heir, he must be named heir:

tions are good .^ • , i ,

objections in ^°» ^* ^^ executor, he must be named such.

abatement both at law and in equity. Rast. 324. llH. 7. 11. Mitf. Eq. PI. 192. Pr.

R^278. ^ ^

See further tit. Misnomer and Addition, (E) (F).

(E) Of Abatement by the Demise of the King.

Proceedings A T common law all patents of justices, commissions civil and

^?i^ •"*t""" military, were determined by the death of the king ; and

ation, m na- n -^ j j- • i i • i "^ t- • i i

ture of a ouo ^11 suits depending m the kmg^s courts were discontinued, so that

warranto, are the plaintiffs were obliged to commence new actions, or to have

not abated by re-summons or attachment on the former processes, to bring the

the crowru ° defendants in ; but to prevent the inconvenience, expense, and

2 Stra. 782. delay, which this occasioned, were the statutes of 1 E. 6. cap. 7.

\\ here the 7 & 8 W. S. cap. 27. § 21. and I Ann. st. 1. cap. 8. § 5. made,

king brings a which vide under title Courts, and their Jurisdiction in

wnt of error GENERAL, (C).
in guare wipe- —> \ /

dit, it abates by his death. 2 Stra. 837. Fort. 213. Fitzgib. 35, 36. Scire facias to repeal a
grant of a market, is an original writ, and within the general words of the statute 1 E. 6.
c. 7. and I Ann. c. 8. and does not abate. Stra. 43. ||By 11 G. 4. and 1 W. 4. c. 45. § 4. all
commissions for taking affidavits in any court, and for taking recognizances of bail shall,
notwithstanding the demise of the crow-n, remain in force during the pleasure of the suc-
ceseor.U

(F) Of

(F) Of Abaiement by tJie Death of Parlies.
(F) Of Abatement by the Death of Parties.

TJERE the general rule to be observed is (a), that wherever 5 Mod. 249.
the death of any party happens pending the writ, and yet the 2 Vent. 196.
plea is in the same condition as if such party were living, there [„ ^^Qu^tof
such death makes no alteration ; for, where the death of the equity in this
parties makes no change of proceedings, it would be unreasonable respect, is
that the surviving parties should make any alteration in the writ ; similar to that
for if such writ and process were changed, it would set rights but ^^"^[j [^ ^^^_
in the same condition they were in at the death of the parties ; and ^^i ^t jaw. If
it would be absurd that what made no alteration should change the interest of

the writ and the process : and on this rule all the diversities turn. » par'y dying

so determines
that it can no longer affect the suit, and no person becomes entitled thereupon to the same
interest, the suit does not abate. Or, if the interest of a party dying survives to another
party ; as, if a bill is filed by or against trustees or executors, and one dies ; or by and against
husband and wife in right of the wife,' and the husband dies, the proceedings do not abate.
So, if a surviving party can sustain the suit, as in the case of several creditors plaintiffs on
behalf of themselves and other creditors. For the persons remaining before the court in all
these cases, either have in them the whole interest in the matter in litigation, or at least are
competent to call upon the court for its decree. Mitf. Eq. PI. 56. 5 Chan. R. 40. 2 Vern.
249. 3 Atk. 726.] JlWhere husband and wife were defendants to a bill praying an assignment
of a term, which the wife by her answer claimed to hold to preserve her dower on the death
of the husband, Lord Eldon inclined to think the suit might proceed without a supplemental
bill. 1 Jac. \\. 495, Where a married woman by her next friend was plaintiff, and the next
friend died, she was ordered to name a new one within two months, or the bill to be dismissed
with costs out of the fund in court. Barlee v. Barlee, 1 Sim. & Stu. 100. The death of one
defendant does not necessarily prevent judgment. Davies v. Davies, 9 Ves. 461. A suit by a
corporation does not become defective by death of some of the members, aliter of a suit by
the members in their individual character. Blackburn v. Jepson, sSwanst. 138.; see 1 Jac.
R. 73. 1 Russell, 51 7.||

The first difference is in real actions; where there are several Cro.Eliz. 982.
plaintiffs, and there is summons and severance, as there is in most ^ ' i*** ^^^'
real actions, there the death of one of the parties abates the writ; 10 Cc 134.
but in personal and mixed actions, (where one entire thing is to be Jon. 452. 6 Co.
recovered,) there \he. death of the parties does not abate the writ; 26.
and the reason of the difference is, that where there are two joint
tenants, and the one goes on to recover his moiety, and the other
will not proceed, there is no reason that he who is willing should
not recover his right, since such tenant has a distinct moiety, and
therefore should have an action to recover. But no summons or
severance lies in personal actions, as, if trespass be committed on
such joint tenants, they must both join in the action ; for as one
may release the whole, so the other may refuse to go on, and his
companion cannot recover his parf of the damage without him :
so, in debt on an obligation to two there can be no summons and
severance, because one of the joint obligees may release the bond :
but, if a man appoints two his executors, there shall be summons
and severance, because one of the executors may release ; yet
such a release is a devastavit in him ; but, if he will not proceed at
law, it is no devastavit ,• and therefore both executors l)eing only
trustees for the person deceased, they shall not be compelled to go
on together: but if one refuses, the other may bring his action in
the name of both, and have summons and severance ; for other-
wise

ABATEMENT.

Co. Lit. 159.

Cro.EHz.652
Leon. 44.

Co. Lit. 139.

Dyer. 279.

10 Co. 134.
Co. Lit. 139.
(a) But shall
abate in a set.
/a, being an
original writ.
Brownl. 64.
but not upon
a urrit of en- ',
quirt/. Leon.
30 U. 6. 30.

wise each executor might by collision with the debtor, and not
proceeding, keep the other from recovering the assets, and yet
not create a devastavit in himself. But after such summons and
severance he does not proceed for the moieties as in real actions,
but he proceeds as the sole representative of the testator, and is
entitled to the whole the testator was in his lifetime.

From these premises it follows, that if there be two joint-
tenants or copartners, and they bring a real action, and one be
summoned and severed, the other shall proceed for his moiety j
and if the person severed die, the writ abates, because he goes for
the whole, in case of the death of the joint-tenant, or of the co-
partner without issue ; and it would be improper to do it on that
writ, where by the summons and severance he went only for a
moiety before; and the writ cannot have a double effect, for a
moiety in case of summons and severance, and for the whole
in case of survivorship ; and therefore since the nature of things
is changed by the death of one of the parties, there must be an-
other writ. And it is the same law, if such joint- tenants proceed
without summons or severance ; for since both by the writ might
by possibility recover their moieties, they shall not go on for the
whole in case of survivorship ; because the words and effect of
the writ at the time of its first purchasing were, that each might
recover his moiety; and therefore a new writ must be purchased
to enable one to proceed for the whole : but in personal and
mixed actions, where there is summons and severance, and yet
after such summons and severance the plaintiff goes on for the
whole, tkeref if one of them die, the writ shall not abate, be-
cause he goes on for the whole after summons and severance ;
and if he were to have a new writ, it would only give the court
authority to go on for the whole.

Therefore, if there are two executors, and they bring an
action of debt, and one of them is summoned and severed, or
not, and such severed person dies, yet the writ shall not abate.

So, if two joint-tenants bring a writ of ward, and they are
summoned and severed, and the severed person dies, the writ
shall not abate ; because after such severance he went on for the
whole, and so he does after the death.

So, in a gttare impedit by two joint- tenants, and one summoned
and severed ; if the severed person die, the writ shall not abate j
because the adowson is an entire thing, and the survivor pro-
ceeded for the whole after the severance, and so he may after
the death.

In judicial writs, the suit shall not abate by death, if the
person surviving be entitled to the whole (a) ; as if a fine be levied
by two coparceners, and one of them die without issue, proceed-
ings shall go on for the other, because he is entitled to the
whole by survivorship ; but if the other coparcener have issue,
then the writ shall abate, for the survivor is only entitled to a
moiety ; for there is no summons and severance in judicial writs.
26J.

But if there be several persons named as plaintiffs in the writ,

and

(F) Of Abatement hy the Death of Parties. 11

and one of them was dead at the time of purchasing the writ, isB. 4. i.
this may be pleaded in abatement; because it falsifies the writ, „. ^%^^* .
and because the right was in the survivors at the time of suing Qiif^'g Ent. 6.
the writ, and the writ not accommodated, as the case then was. Rast.Ent.i26.

But if an erroneous judgment be given against two, either 26 Ass. p. 25.
of them may bring a writ of error, and he may summon and Bro. Summ. &
sever the other; for it would be unreasonable that the one Sev. 19.
should not discharge himself of an erroneous judgment, because
the other will not intermeddle ; and default of one in a personal
action shall not prejudice the other.

If there be several defendants in the original action, and one Cro. Car. 426.
die, the writ does not abate, because there being a joint de- •^°"' ^*J* ^*^*^'
mand, it survives against the residue; but if one happen to 7-,' ,^,
die pending the writ, there must be a suggestion on the roll, 1 Show. 1 86.
because it would be error to give judgment against a dead
person.

In a writ of error, if there be several plaintiffs, and one die, Yelv. 208.212

the writ shall abate; because the writ of error is to set persons 213. Ventr.

in statu quo before the erroneous judgment was given ; and the ^f- contra

plaintiffs in error are distinct sufferers in the judgment, since ro V^^^'p

there might be different executions issued thereupon, and differ- noyerv. Brace

ent liens made by such judgment on the lands of each of them ; Ld. Raym.

and, by consequence, the survivor cannot prosecute the writ ^44. where

of error for the whole, lest by collusive persuasion, or by neg- f doctrine
T 1 11111 ■ r I t -i"^ ° advanced m

ligence, he should hurt the representative or the deceased. the text is

admitted by the court.] ||But the above cases (even the last) seem all to have been
before the 8 & 9 W. 3. c. 11. (see jmst.)^ and by the effect of that statute the death of one
plaintiff in error does not abate the writ. Clarke v. Rippon, I Barn, & A. 586.||

But if any of the defendants in error die, yet all things shall Sid. 419.
proceed, because the benefit of such judgment is to go to the 044 iff s ik
survivor, and he only is to defend it. siaill

In audita querela by two, the death of one shall not abate the Theol. 139.
writ; for the survivor is not to be restored to any thing that he sH. 7. 1.
has lost, but only to discharge himself of the execution, and ^ ^°'^' ^^^*
thereupon, notwithstanding the death of the other, he may pro-
ceed for a discharge in toto for himself.

[Upon the same principle it was holden, that a prohibition ^\'^^.'f°"
by husband and wife to a suit in the spiritual court, did not Crofts *Andr
abate by the death of the husband.] 57. Cas. temp.

Hardw. 395.

II Where husband and wife commjenced an action for money Checchi v.
lent by the wife before marriage, and she died pending the "9^^'^»
action, it was held, that it thereby abated. || 253^8 Dow*

& Ry. 592.

[The death of the lessor of the plaintiff in ejectment (though g Stra. 1056.
only tenant for life) is no abatement. ||As to costs*

in such case, see Tidd, 1243. (9th edit.)||

Kferi facias doth not abate by the death of the plaintiff after Clerk v. Wi-
the seizure of the goods ; for by the seizure the property is ^J*^*"^' ^ ^'^•
changed. But if the goods seized are not sufficient to satisfy j g-^^' 322.*
the debt, a second feri facias cannot issue without a revivor s. C. 6 Mod.

18 ABATEMENT.

S90.S.C. of the judgment, (a) An extent abates where the death hap-
(«) Wharam pg^^ before the liberate ; for until tlvat is awarded, the execution
ivli^'llo*""' 's incomplete. So, a seqtiestration to compel performance of a

decree when the party dies before order for sale of the goods.
6& 9W.5. A suit for partition of lands is not abated by the death of one

C31. §3. of the tenants. Nor is a suit on the statute of hue and cry,
«7Eliz.c.i3. commenced in the name of the clerk of the peace, abated by
^ * his death or removal.

1 Burr. 147. If the plaintiff or defendant die whilst the court are consider-

219. 4 Burr, ing of their judgment, ||or after a special verdict or special case,
2277. Bates v. j^^jj pending the time for argument, or for advising thereon, or
iT^m°R!c57. *^" ^ motion in arrest of judgment, or for a new trial,]) they will
||i Ken. 253. permit the judgment to be entered up as of the term in which it
1 East, 409. regularly might have been : so, perhaps, if there be any frivolous
T-^T"- '^^' ^^^y ^y ^^^ other party ; but, where the proceedings are in the
(9th edit ) common course of law, they cannot interfere.

1 Crompton & Jervis, 47.||

Sir Thomas An information does not abate by the death of the attorney-
Waller V. general ; nor by the death of a relator who prosecutes for the
Hanger, king: nor, it seems, by the death of the m^Tmev qui tarn {b),

2 Bulstr. 26K g,p f^j, jjj gyplj ^jjgg jjjg attorney-general may proceed for the

lin" Hardr. '^' king's moiety.

161. (i) Hammon V. Griffith, Cro. Eliz. 583. Anon. Moor, 541.
Mitf. Eq. PI. The proceedings upon an information in equity can only abate
2 E Cas Abr' ^^ ^^^ death or determination of interest of the defendant. But,
1. 1 Ves. 71. i^ there are several relators, the death of any of them, while there
»Ve8.327. survives one, will not in any degree affect the suit: but, if all the
relators die, or if there is but one, and that relator dies, the Court
will not permit any further proceeding till an order has been ob-
tained for liberty to insert the name of a new relator, and such
name is inserted accordingly; otherwise there would be no per-
son liable to pay the costs of the suit, in case the information
should be deemed improper, or for any other reason should be
dismissed.
Eq. Cas. Abr. The benefit of a decree in equity may be had, notwithstanding
2- P- ''• the death of some of the parties, provided that nothing be re-

quirable of their representatives.
1 Vern. 351. After a cause has been heard on a bill of interpleader, and a

trial at law has been directed to settle the right between the
defendants, the death of the plaintiff does not abate it, for his
interest is at an end.
Continued by By the 1 7 Car. 2. c. 8. it is enacted, " That in all actions
30 Car. 2. c. 6. " personal, real, or mixed, the death of eitlier of the parties (c)
and made per- «« between verdict and judgment shall not be alleged for error, so
petualbyi Jac. « ^g g^^j^ judgment be (rf) entered within two terms after such
t)*ife'ither'of " verdict." (e)

the parties die at any time before the assizes, it is out of the statute ; but if after the assizes
begin, though before trial, it is no error ; for the assizes are but one day in law. Salk. 8.
pi. 21. [7TermR. 31. And in the former case, the court said it was in their discretion
whether they would arrest the judgment. Salk. uln supra. But in Lord Raym. 1415. it was
holden not assignable for error, it being stated on the record that the defisndant appeared per

altornatum

(F) Of Abatement by tJte Death of Parties. IS

attornatum sumn^ {d) If after the verdict, and before the day in bank, the plaintiff dies, and
the defendant signs judgment the second term after the verdict, this is within the statute, and
the same as if he had actually entered judgment on the roll. Sid. 585. [Judgment entered
according to this statute, after the plaintiff's death, shall relate in all respects to his life. 1 Lev.
278. Raym. 210. Where the jury found a special verdict, and the plaintiff died in the term
in which it was to be argued, the judgment was by consent entered up as of the first day of
that term. Pond v. King, 1 Wils. 124. Where the plaintiff dies between the verdict and the
entry of the judgment, his representative cannot take out execution without a scire facias.
Earl V. Brown, 1 Wils. 502.] \{e) The statute does not apply to cases of nonsuit, Dowbiggin
v. Harrison, 10 Barn. & C. 480 ; nor to cases where the party dies between interlocutory
judgment, and before the return of the enquiry ; it is confined to verdicts. 4 Taunt. 884.||

[An information for a penalty under the French act was ad- Attorney Ge-
judged not to be within this statute, but to abate by the death of n^ral v. Buck-
the defendant between the verdict and the judgment ; for, in the 264. *

first place, it is not an action real, personal, or mixed ; secondly,
the king cannot be properly said to be a party ; thirdly, it is not '
a duty, or in lieu of customs, or any revenue of the crown ; and
lastly, actions do not comprehend informations between party and
party, or include the king. A suggestion of the death upon the
roll confessed by the attorney-general was thought sufficient
without a writ of error.

The rule laid down by the Lord Chief Baron Gilbert in the
preceding part of this chapter respecting the non-abatement of a
suit by the death of any of the plaintiffs or defendants, when
such death made no alteration in the proceedings, though
founded in reason, was not uniformly supported by authorities ;
it is therefore enacted by the 8 & 9 W. 3. c. 11. § 7. * That
' if there be two or more plaintiffs or defendants, and one or

* more of them die, if the cause of action survive to the surviving

* plaintiff or plaintiffs, or against the surviving defendant or '

* defendants, the writ or action shall not be thereby abated ; but
' such death being suggested on the record, the action shall pro-

* ceed at the suit of such surviving plaintiff or plaintiffs against ^.

* such surviving defendant or defendants.'

The formal suggestion of the death need be only on the plea- Farr v. Denn
roll; nothing more is necessary on the nisi-prius-roll than i Burr. 562.
merely to point out to the judge what he is to try, and between
whom.

Although the statute makes mention only of actions at law. Brown v.
yet it hath been construed to prevent the abatement of a suit in Higden,
equity, provided that the subject-matter of the suit be not affected ^ ^^^' ^^^'
by it.]

* By the last-mentioned statute, § 6. it is enacted. That if any [Where a de-

* plaintiff happen to die after an interlocutory judgment, and fendant died

* before a final judgment obtained therein, the said action shall "^'O^^ the ex-

* not abate by reason thereof, if such action might originally be ti'iife'to"plead^

* prosecuted or maintained by the executors or administrators of underajudge's

* such plaintiff; and if the defendant die after such interlocutory o'der, it was

* judgment and before final judgment therein obtained, the said !u°'''T' ''^i^

* action shall not abate, if such action might originally be pro- could not*

* secuted or maintained against the executors or administrators under this' act,

* of such defendant (a), and the plaintiff, or if he be dead after *'g" judgment,

* such interlocutory judgment, his executors or administrators, ^".'^^'^"'^ P"' '^

* shall

ABATEMENT:

thereon.
1 WiIs.5I5.
Wollop V.
Irwin.l
|K«) See
4 Taunt. 884.11

Berger v.
Green,
1 Made & S.
929. ; and see
3 Maule &

S.281. 2Chitt. R,235.

Turner v.
Cowper,
Barnes, 210.

* shall and may have a scire facias against the defendant, if living

* after such interlocutory judgment; or if he died after, then

* against his executors or administrators, to shew cause why

* damages in such action shall not be assessed and recovered by

* him or them ; and if such defendant, his executors or admini-

* strators, shall appear at the return of such writ and not shew

* or allege any matter sufficient to arrest the final judgment ; or
' being returned warned, or upon two writs of scire facias it be

* returned, that the defendant, his executors or administrators,

* had nothing whereby to be summoned, or could not be found

* in the county, shall make default, that thereupon a writ of

* enquiry of damage shall be awarded, which being executed and

* returned, judgment final shall be given for the said plaintiff,

* his executors or administrators, prosecuting such writ or writs

* of scire facias, against such defendant, his executors or admi-

* nistrators respectively.*

II Where interlocutory judgment was signed, and the plaintiff
died on a subsequent day in term, the court granted a rule to
compute principal or interest on the bill of exchange on which
the action was brought. ||

6 G. 4. c.

$67.

16.

7G.4.
$26.

C. 57.

[Where plaintiff died after a rule by consent to refer to the
prothonotary, and before the report, the court allowed his
executor to be made a party to the rule, and directed the pro-
thonotary to proceed without the defendant's consent.]

II By 6 Geo. 4. c. 16. § 67. whenever an assignee of a bank-
rupt shall die, or a new assignee or assignees shall be chosen, no
action at law or suit in equity shall be abated, but the court in
which any action or suit is depending may, upon suggestion of
such death or removal and new choice, allow the name of the
surviving or new assignee or assignees to be substituted in place
of the former, and such action or suit shall be prosecuted in the
name of or names of such surviving or new assignee or assignees
in the same manner as if he or they had originally commenced
the same.

A similar provision is contained in the last insolvent debtors'
act in case of the death or removal of assignees of insolvent
debtors. U

Doct. PI. 3.

Sid. 410.
Leon. 108.
169. Ttde
tit. Baron and
Feme. In
an action
against baron
and feme, the
buron died

(G) By Reason of Coverture.
^OVERTURE is a good plea in abatement, which may be

either before the writ sued, or pending the writ. By the
first the writ is abated de facto, but the second only proves the
writ abateable ; both are to be pleaded, with this difference, that
coverture pending the writ must be pleaded jpost ultimam continu'
ationem : whereas coverture before the writ brought may be
pleaded at any time (a), because the writ is de facto abated; but
if a feme sole takes out a writ, and after marries, the defendant

(G) By Reason of Coverture, 15

was legally attached on such suit ; and therefore may plead in and the feme

chief to it any defence he has. ^nS/^r

cito ; and the court inclined to think the writ abated, because her name was changed. Stile,
138. [But 2 Ld. Raym. 1525. 2 Stra. 811. Barnard. K. B. 70. are all express that coverture
in the defendant after action brought cannot abate plaintiff 's writ. See too, to the same effect,
2 RoUe's R. 53.] (a) Vide infra.

If a writ be brought by A. and B. as baron and feme, whereas F'^z. Brief,
they were not married until the suit depended, the defendant may
plead this in abatement ; for though they cannot have a writ in
any other form, yet the writ shall abate, because it was false when
sued out.

If a writ be brought against a feme covert as sole, she may Latch, 24.
plead her coverture; but if she neglect to do it, and there be a Stile, 254.
recovery against her as a feme sole, the husband may avoid it -^ ^^ rrpj^^*
by writ of error, and may come in at any time and plead it. piea of co-

verture, whether in plaintiff or defendant, can only be in abatement. MUner v. Milnes
sTermR. 627. See tit. Baron and Feme. ||This is too generally stated. Coverture at the
time when the supposed contract was made, or cause of action arose, may be pleaded in bar
or given in evidence on non-assumpsit, for it shews an incapacity to contract, Sec.; but if the
feme was unmarried when the cause of action arose, then the plea must be in abatement ; for
it does not destroy the contract, &c. but only shows that the husband is a necessary party to
the action. 8 Terra R. 545. 3 Camp. 123. 3 Term R. 627. 6 Term R. 265.11

If an action be brought in an inferior court against a feme sole, Salk. 8. pi. 20.
and pending the suit she intermarry, and afterwards remove the ^ ^Revnold"
cause by habeas corpuSy and the plaintiff declare against her as a Qjib. Hist. *
feme sole, she may plead coverture at the time of suing the C. P. 245.
habeas corpus (b), because the proceedings here are de novo, and W [But the
the court takes no notice of what was precedent to the habeas ^^^ ?j this^"*'
corpus; but upon motion on the return of the habeas corpus, the case hath been
court will grant a procedendo ; for though this be a writ of disallowed,
right, yet where it is to abate a rightful suit, the court may Haddock v.
refuse it; and the plaintiff had bail below to this suit, which by g^^es 5551
this contrivance he is ousted of, and, possibly, by the same
means, of the debt.

If a feme sole plaintiff, after the verdict, and before the day in Cro. Car. 155.
bank, takes husband, she shall have judgment, and the defendant ^ Bulst. 5.
cannot plead this coverture, for he has no day to plead it in.

II If she take husband after suing out the writ, and before Morgan v.
declaration, the defendant cannot give the coverture in evidence 5*^"*^^%
under the general issue, but must plead it in abatement ; and so Milnm- v.
also if a married woman sues alone for an injury to her property Milnes, Term
whilst single. II R.327.

[In equity, a suit does not abate by the marriage of a female 1 Ves. 182.
defendant, but the plaintiff may proceed, only entering the name
of the husband and wife in the subsequent proceedings.
^ Though a suit in equity regularly become abated by the mar- Lady Cram-
riage of a female plaintiff, yet if she afterwards proceed in the suit ^^^^ ^- ^^
as a feme sole, the mere want of a bill of revivor is not error r*2m'.
upon which a decree can be reversed upon a bill of review by the (c) Godkin v.
defendant, (c) And if the husband die before revivor, she may l^arl Ferrers,
proceed without it, for then her incapacity to prosecute the suit ^^^2' c'tedin

ABATEMENT.

Mitf. Eq. PL

67.

flSee 7 Ves.
257. loVcs.si
13 Ves. I6l.il

is removed ; but the subsequent proceedings are m the name and
description she has acquired by the marriage.]

II As to proceedings by scire facias on marriage after judg-
ment, see tit. « Scire Facias," (C). Vol. VII. and Tidd's Prac.
1114. {9th ed.)||

(H) By a Defect in the Writ

nPHE foregoing objections, such as want of jurisdiction, disa-
bility in the plaintiff, or privilege in the defendant, 8fc. being
matters dehors^ must be shewn to the court, and must be pleaded
in proper time and manner ; but, for defects in the writ itself, the
court may ex officio abate it.

And herein we must observe, that the law hath been very strict
in obliging men to keep to the legal forms it prescribes ; and
therefore in the writ, which is the foundation of the whole pro-
ceeding, requires such certainty and exactness, as that no person
be arrested or attached by his goods, unless there appear suf-
Cro. Jac. 576, ficient grounds to warrant such proceedings ; so that if the writ
577. vary materially from that in the register, or be defective in sub-

stance, the party may take advantage of it.
Hob. 84. But though the writ vary from the register, yet, if it be war-

ranted by the modem precedents, this shall not abate it.

9H.7. 16.

10 E. 3. 1.
pi. 2. 2 Inst
662. Hob. 1.
51, 52. 84.
Carth. 172

(I) By the Writ's not agreeing with the Count.

Cro.Eliz. 729.
Cro. Jac, 651.
Jon. .■504.
[(o) The de-
fendant can-
not plead a
variance be-
tween the writ
and count,

T F the count or declaration varies in form, the defendant may
plead it in abatement (a), for the plaintiff has abated his own
writ by prosecuting it in a different manner ; but, if it varies in
substance, the defendant may move it in arrest of judgment, be-
cause the Court has no authority to proceed, a different matter
being prosecuted from that which the writ has given authority to
the Court to take cognisance of.

without praying oyer of the writ, and shewing it to the court, 2 Wils. 85. 393.] {[And as the

court will not now grant oyer of the writ, such pleas have falleu into disuse; see Tidd. 636.

(9th edit.) 1 Bos. & Pull. 645. 7East,S83.||

(5) Fitz. Brief, The declaration varying from the writ (c), as by laying the
cause of action in the reign of a present king, where the writ
supposed it to have been in the reign of a former king ; or by
giving the defendant a name different from that in the writ {d) ;
as, where the writ calls him A. B, of London, alderman, and the
plaintiff declares against him, as A, B. of LoTidon, Esq. ; or,
where the declaration is otherwise defective in not pursuing the
writ, or not setting forth the cause of action with that certainty the
law requires, or in laying the offence in a different county from
that in which the writ was brought {d) : in all such cases the
defendant may plead in abatement.

But the writ may in some cases be general, and the declaration
special ; as, where a statute gives an action, but does not prescribe

any

219.321.

(rf) Allen, 17,
18.

Doct. PI. 84.
etplut under

(K) TVhere the Writ is abated de facto, <Spc. 17

any form of the writ, the writ framed by the common law will the division of

serve, and the special matter may be set forth in the declaration. *^f dedara-

' * •' twn s agreeivg

wilh the writ, tit. Pleader.

If a feme sole be disseised, and afterwards marry, and she and 14 H. 6. I4.
her husband bring an assize ; the disseisin must be alleged to be 2 And. 97.
done to the wife : but, if a feme disseisoress marry, in an assize
against them, the disseisin shall be alleged to be done by them
both, because there is no other form of writ.

(K) Where the Writ is abated defacto, or is only
abateable.

XJERE the general rule to be observed is, that where the writ 2 H. 6. 4.

is de facto a nullity and destroyed, so that judgment there- ,^°'^'*^'-^'
upon would be erroneous, there the writ is de facto abated j as, if " "'\.^ ^q^ •■
an action be brought against a feme covert as sole, this makes
another man's property liable without giving him an opportunity
of defending himself; which would be contrary to common jus-
tice, and therefore the writ is de facto abated, la)

So, if the return of a.plunes mandxnmis be laid to be after the Carth. 172.
beginning of a term, and the memorandum of the bill be entered ^"^ ^" *'"^
generally of that term, this makes the writ a perfect nullity ; for ^'^^^ leave'to
by the plaintifPs own shewing he had no cause of action at the amend. 2 Lev.
time when the action was brought. 197.

[So, if the matter in question appear to be exclusively of eccle- Br. Office, &c.
siastical cognizance ih) ; or, if an appeal of death be brought by a V-}^- 22 E. 4.
woman of the death of anyone else than her husband (c) ; or the TAVjorj 4 ^
debt be laid to be under forty shillings. (c) 3 Burr.

1592. 4 Term R. 495.

So, in equity, if a bill of appeal and review be brought of a Jennet v.
decree in the court of a county palatine. 1 V •'^''i84

And as in these cases a fatal objection to the proceeding ap- Hob. 280.
pears upon the very face of the record, the court may and ought ' ^'** ^^r
ex officio to abate the suit at any time, and in any stage of it.
For the court, who are to judge according to law, are not con-
cluded by the admission of the parties of any thing that judicially
appears to be contrary to law.

Regard to public decorum and their own dignity sometimes Dacosta v.

calls upon the court to interfere in this manner ; as, where the Jones, Cowp,

question proposed on the record is idle in itself, involves no civil t ^' ^^'^^'
*. , , .'. * 1 ,1 . , . . ,. ' . . , Leesom, 2 H.

right or mjury, and would introduce m its discussion indecent or Black. R. 43,

improper evidence.

The courts, having a general and necessary control for the Steane v.

purposes of justice over all causes depending before them, will )^pl'"^J'p

occasionally interpose on the motion of a defendant, and stay the 754^Kenn'ard

proceedings. Thus, though upon the face of the record the de- v. Jones,

mand exceed the sum of forty shillings, yet, if upon affidavits on 4 Term R,

the part of the defendant, uncontradicted by the plaintiff, it be ^^5. Welling-

shewn that in fact it do not amount to that sum, the cause will ^°Xerra R 6«

Vol. I. C not

18 ABATEMENT.

not be permitted to proceed any farther in the superior court.

(a) Petrie v. (a) So, if in an action for bribery on the statute of 2 G. 2. c. 24-.

White, it appear that the plaintiff was guilty of lailful delay in the pro-

a Term R. 5. gecution of his suit, which fact the defendant could not intro-
duce either on the lecord, or at the trial, the court will stay the
proceedings; for "iVil/itl delay is expressly prohibited by the
statute.

Pcshall V. So, where they find that actions have been brought against

M^*°"'r^ several upon a penal statute which makes only one offence; they

zrerniR. 712. -ii ^ '.i ' i- * f u n

will stay the proceed mgs upon payment or one penalty.]

(A) Salk. 2. Where the writ is only abateable, it must be abated by plead-

2l 1 R^° ing in time; for matters in (&) and before the writ (c), cannot
853. Show.' ^^ taken advantage of in error.

169. Roll. Abr. 783. That a man shall not assign that for error which he might have
pleaded in abatement. Carth. 124. There is a difference between original and judicial
writs ; for in the former, matter of form abates them as well as substance ; aliler in the latter;
for if the substance be good, the want of form will be aided. 41 E. 3. 13, 14. (c) Other-
wise, of faults in the proceedings after the writ. Bro. Faux Latin, 9. 48. For this, mde tit.
£rror,

Carth. 124. Therefore, if a feme covert bring an action in her own name

3 Term li 627 ^^^ attornatum, and the defendant plead in bar to the action, he
Cro. EL 554. shall never afterwards assign the coverture for error.
Salk. 4. pi. 10. So, though it be a good plea for a defendant to say that a
stranger is tenant in common with the plaintiff, yet if he does
not plead it in abatement^ he shall not have advantage of it in
arrest of judgment.
arth.261. So, if an action be brought against one executor, where there

are more, if that one executor do not plead this in abatement,
but plead to the action, he shall never have advantage of this plea
afterwards.
jICroEHz.554. So, where trespass is brought by one joint-tenant, or by one
Moor, 466. II tenant in common, and the defendant pleads to the action, and
the jury find specially, that another (not named) is joint-tenant or
tenant in common with the plaintiff; yet he shall have judgment,
notwithstanding the writ at first was abateable.
Saund.291.'' So, where an action of debt is brought on a joint bond against

one of the obligors, and upon ncni est factum pleaded, the jury
find that J. S. (then living) was jointly bound with the defend-
ant, yet the plaintiff shall have judgment.
Trin. 24 Car. Tenant in common of lands brought an action of trover in
2. Rot. 1216. his own name alone for cutting down trees and carrying them
tween Black- ^^''^y ' ^^^ defendant pleaded to issue ; and in a special verdict it
burn V. Grove, ^^s found, that the plaintiff was tenant in common with J. S. not
cited in Carth. named; yet the plaintiff had judgment, because this was a mat-
^"'* ter pleadable in abatement.

Ree« V. Abbot, [If one only be sued on a joint note, it must be pleaded in
AhjT'* ^^^* abatement ; it will not be error. So, in actions against partners.
Smith 2 Black ^^^ where an action is brought by a joint covenantee (rf), ad-
R. 947. vantage may be taken of it by demurring generally.

Rice V. Shute, 5 Burr. 2611. l Black. R. 695. S. C. (rf) Cabel v. Vaughan, 1 Saund. 291.
1 Sid. 420. S.C. 1 Ventr. 34. S. C. B.N.-P. 158. 5 Co. 119. ||That is if it appears on the
record that there is another covenantee living and not joined, or if it be made to appear by

praying

(K) Where tfie Writ is abated de facto, (§'C. 19

praying ot/cr of the deed and setting it forth, 1 Will, Saund. 154, a. notd, and cases therein ;
and in such case the nonjoinder is also a ground of nonsuit or of error. Ibid.W

In such a plea to^n action on a bond, it must be stated that Sayer v. Chay-

the other obligor executed the deed, and that he is still alive. iTr^is-'^'d

It is not sufficient to say, that another, not named, was jointly 291.* iiorner

bound. But, if it appear on the face of the declaration that both v. Moor,

obligors have sealed, and both are living, the objection is good M. 2 G. 2.

in arrest of judgment. fjfj'' ^.P""?'

•^ o 2614.; Ijand

see 1 Will. Saund. 91 in notes.||
But in trespass it is no plea in abatement that there is an- , , „ ., ^
other joint-trespasser not named, (a) J 11(a) So, in an>

case of tort; Govett v. Radnidge, 5 East, 62. 1 Will. Saund. 291. e.; for torts are several in
their nature, and the plaintiff may elect to sue all or any of the parties. But if the action is
founded on matter ex qnasi contractu, though its J'orin be in tort the defendant may plead in
abatement that other parties ought to be joined. Buddie v. Wilson, 6 Term 11.369. Powell
V. Layton, 2 New R. 565. Weall v. King, 12 East, 452.; and see Green v. Greenbank,
2 Marsh. 485. Bretherton v. Wood, 5 Brod. & B. 54. ; and there is a distinction between
2}ersonal actions of ton and such actions when they concern real property. Therefore, if one
tenant in common be sued in tort for any thing connected with the land held in common,
he may plead the tenancy in common in abatement ; see 1 W. Saund. 291 f. notdf and cases
there-ll

II If one of several part owners of a chattel sue alone for a Addison v.
tort, advantage can be taken of the objection only by plea in Hy^^*"^"^'
abatement, even though the defect appear in the declaration, gedfreworth
And if a defendant neglect to take advantage of it in that man- v. Overend,
ner, in such an action by one part-owner, he cannot afterwards 1 Will. Saund.
avail himself of it by a plea in abatement to another action by an- p^ g?^' '^n.s^^
other part-owner, {b) \\ Although in

actions of tort the nonjoinder of a co-plaintiff is matter in abatement only, yet according to
the doctrine in the note above it would seem, that where the action is substantially founded on
contract, the form of it in tort will not prevent the plaintiff being nonsuited for nonjoinder of
other plaintifis.

If a qiiare impedit be brought against the bishop and incum- Cro. Jac. 651.
bent only, without naming the patron, though this might have ""'st. 4, 5.
been pleaded in abatement, yet if the defendant plead in bar, ^c. PajJ^ ^"oe" '
it cannot after, upon a writ of error, be assigned for error; for 311. 2 Roll,
though the want of a patron's being made a defendant might Rep. 239.
make the writ abateable, yet it was not thereby actually abated ; ^y* '^^*
and nothing shall be assigned for error concerning the writ, but
what actually abates it.

If an action be brought against Sir Francis Fortesque, militem Roll. Abr. 781.
ct baronettum, and he appear and plead to issue, and a verdict '^|j ^^•
and judgment be given for the plaintiff, the defendant in a writ R"^'-Rep.45o.
of error shall not assign for error that he was a hnigJit of the
hath, and ought to be so named ; for he has lost this advan-
tage by appearing to the other name, and thereby concluded
himself.

If a writ be brought to the damage of 40/. and the plaintiff Palm.270,271.
declare ad damnum 200/. and the verdict give 30/. this is no ^^^ as to this
error after verdict, for the writ is not abated dc facto, but only [g^^t^af IfXf
abateable by plea. declaration

varies in form, the defendant must plead it in abatement; but, if it varies in substance, the
defendant may move it in arrest of judgment, or take advantage of it in error ; because the

C 2 Court

20 ABATEMENT.

Court has no authority to proceed, having prosecuted a different matter from that which the
writ has given it iiithority to take cognizance of. Jones, 304. Cro. Eliz. 722. Cro. Jac. 654.
For this rule tit. Error.

Anon s Atk. ^A bill in equity is not dismissed for want of parties ; but
15. Gwinnv.* stands over for amendment on paying the costs of the day,
Poole, 4 Bro. The want of parties may be pleaded in abatement ; but, upon
P.(;. 122. allowing the plea, the court will give the plaintiff leave to
Pratt, I P. amend.]
Wms, 593. Mitf. Eq. Pi. 221.

(L) Where the Writ shall abate in toto, or in Part. ]

Hof 199*217 "W'HATEVER proves the writ false at the time of suing it
245. Biiist. i! ou^ shall abate the writ entirely (a); as, if it appears by

(a) Cut tliis the plaintiff's own shewing that he had no cause of action for
falsification of part; therefore if an action of trespass be brought against two
be^in a mate- defendants, and the one plead that the other was dead die im-
rial point ; for pctrationis brevis, or that there is none such in renim naturoy
in a prcecipe the whole wi'it shall abate; for it is the plaintiff's fault to use
^itod reddat jj^g authority of the court to call in a man that was dead ; and
on^ pleadT** ' ^' ^^s no less an abuse of the process to issue it against a feigned
non-tenure, person.

and the other takes the whole tenancy on himself, the writ shall not abate in the whole, but
stand good against him that hath accepted the tenancy, because there is a proper defendant
to the action ; and the non-tenure of the one does in no ways prejudice the other defendant.
Rast. Entr. 3G5. Doctr. Pi. 7.

Doctr. PI. 7. But, if one of the defendants die pending the writ, this shall

not abate the action against the other defendant ; for this is the
act of God, and no default in the plaintiff. See the 8 & 9 W. 3.
c. 11. $ •7.suprh(P).
Hewitt V. Bib- [The bankruptcy of the plaintiff or defendant happening in
bms, 2 Wils. any stage of a suit either at law or in equity is no abatement,
krctchman v ^^^ ^^ '^^^ discharge of the plaintiff after action brought under
Beyer, 1 Term ^" insolvent act, and an assignment of liis property for tlie be-
R.463. nefit of his creditors.]

Waugh V.

Austen, 5 Term R. 437. Anon. 1 Atk. 263. Butler v. Davidson, Exchequer, East. 33 G.5.
But contr. per Lord Thurlow, where it happens before decree or judgment. Sellas v. Daw-
son, in Chancery, Dec. 8th, 1790. Co. Bpt. Laws, 622. 3d edit. Hedley v. Brown, Barnes,
389. llThe case of Sellas v. Dawson, was conudered and overruled by the Court of Exche-
quer in Butler v. Davidson. But in a later case, where after a decree in a cause, referring it
to a master to take the accounts, the plaintiffj before the accounts were taken, took the
benefit of an insolvent act, and assignees were appointed, who conceiving the suit did not
abate, took out warrants to proceed in the accounts before the master ; Lord Loughborough,
upon a motion to stay proceedings till a supplemental bill should be filed, held, that there is
no other way for the assignees to come into that court but by filing a bill : that though at
law as-signees have been allowed to proceed in the bankrupt's name, giving security for the
costs, yet at law the defendant can lose nothing by the bankruptcy of the plaintiff but his
costs ; and security for the costs, therefore, is all that is necessarj' : that in equity more is
necessary ; a plaintiff may be decreed to account and to pay the balance, and there must
therefore be a substantive plaintiff, a party to the cause, who may abide such decree as may
be made. Williams v. Kinder, 4 Ves. 387. ; and see Ry lands v. Latouche, 2 Bligh, P. C. 566.
And though bankruptcy of the plaintifF does not abate a suit in equity, yet a motion will be
' r.'itcd that plaintiff procure his assignees to file a sunnlcmcntal bill witliin a given tune, or
' ai tt,e suit be dismissed without costs. Wheeler v. Malins, 4 Madd. 171. Porter v. Cox,
5 Madd. 80. Randall v. Mumford, 18 Ves. 424. As to abateaient by death or removal of
a«*igQec*, see ttnil (F^jj

(L) Where ths Writ shall abate in toto, <§pc. ti

If there be two execQtors, and one who is named of D. say (^q l;^ 285.

he is of C. the writ shall abate against both, because they are a. Doct.

both representatives of one person, and must both be legally Pl'7. 21 H.e.

summoned ; and as they are both but one person in the eye of ^."^ ^\\ e

the law, the plaintiff cannot proceed against the one without oj^g plaintiff

the other (a) ; but, in this case, the other defendant will be shall stop the

obliged to plead, though the defendant's plea in abatement shall others from

be first determined : and if it be found for him, shall abate the Foceeding :
. , ' ' for the writ,

writ in toto. ^ ^hen abated

for want of form, is abated quoad all, though they have pleaded to issue. 8 Co. 159.
Carth. 96. But, if two executors sue, and set forth themselves tq be executors, and that they
proved the will, but upon the probate set forth, it appears that one only proved the will,
and the defendant pleads this in abatement, a respondeas ouster will be awarded; for both have
a right; and he that did not prove may come in when he pleases. Salk. 5. pi. 6. The setting
forth tliat they had proved the will amounted only to surplusage ; the method is, to declare
as executors generally, and make a profert of the letters testamentary, whereby it appears
they are executors.

At common law, non-tenure of parcel of the lands abated Booth, 29.
the whole writ; for this falsified the writ which alleged the ^° ,-"4^'
defendant to be tenant of the whole. But it was thought very ^q 'pj-om
hard that a writ which was good in part, should be totally this statute
destroyed by this plea; and therefore 25 E. 3. c. 16. enacts, that arose the dis-

the writ shall only abate for that part of which non-tenure is taction in our

1,1 •' ^ books, that

alleged. the plaintiff

cannot destroy, but may abridge, his demand.

At common law, if the tenant plead non-tenure and disclaime?; Co. Lit. 362,3.

the plaintiff cannot aver his writ, and say he was tenant ; for in q^I\^^^o^(j

real actions anciently there were no damages given ; and the 5 Lgy -^q^

plaintiff by this plea has the effect of his writ, which is to be put Lutw. 963.
into possession of the lands. But if non-tenure be pleaded, with-
out disclaimer, the plaintiff may aver his writ, and shew that the
tenant has the reversion in fee in him as well as the freehold, or
take judgment at his election.

If the demandant enters into any of the lands, pending the 4 E. 4. 52.

writ, this shall abate the writ in toto. Doct. PI. 5.

The plaintiff declared for arrears of a rent-charge, and de- gaunj, 332.

manded a larger sum than was due to him, upon his own shew- Duppa and

ing, by 7/. lOs. The defendant pleaded a bad plea, and the Mayo,

plaintiff had judgment for his whole demand ; but perceiving jK^^ f'he dif-

his mistake on the entry of the judgment, he released the 7/. IO5. ^^ ^^ that™^

and it was holden a good release {b) ; and that it was not a falsi- where the

fication of his writ, but rather an affirmance ; but, if the defend- duty to be

ant had taken advantage of it in due time, it would have abated '"^'^pxered is
.1 -, / V o certain and

the writ, (c) entire, ou the

face of the contract or specialty,- a demand of more than is due is bad, and cannot be aided
by the entry of a remittitur ; but where the duty is composed of several joarc^/s a demand of
more than is due may be aided by remitting the overplus. Cro. Jac. 499. Lord Raym. 815.
7 Mod. 88. ; and see Barnard v. Duthy, 5 Taunt. 27. Fortv v. Imber, 6 East, 454. (c) It seems
it would only have abated the writ as to the 7/. 10«. and not in toto, according to Godfrey's
Ca. 11 Rep. 45. b. See 1 Will. Saund. 285. a. b. notes, (5th ed.); and that the defendant in
replevin may recover so much rent as he proves due, although he has avowed for more, see
tit. Replevin (K), Vol. VILH

If an action is well begun, and part of the action determines Co. Lit. 285.
by act in law, and yet the like action is given for the residue, ^'

C 3 the

ABATEMENT.

Co. Lit. 285.
a.

Co. Lit. 285.
[(a) So if

Co. Lit 285.

Co. Lit
a.

285.

the writ shall not abate, but the plaintiff may proceed for tlie
residue; but, where, by the determination of part, the like action
does not remain for the residue, tliere the action, though well
commenced, shall abate.

As, if an action of waste be brought against tenant pa- outer
vie, and, pending the writ, cestinj que vie die, this shall not abate
the writ //* toto ; but the plaintiff may proceed to recover da-
mages on this writ ; for the lessor might have an action for the
damages, though cestuy que vie had died before any action of
waste brought.

So, if an ejectment be brought, and the term expire pending
the writ, yet the action shall proceed for damages only, (a)
the lessor of the plaintiff die. 2 Stra. 1056.]
Co. Lit. 285. But, if tenant per outer vie had brought an assize, and pend-
*• ing the writ, cestuy que vie had died, although the action was well

commenced, yet the writ should abate ; because no assize lies for
damages only.

So, if an action of waste were brought by baron and feme in
remainder in especial tail, and pending the writ the wife die
without issue, the writ would abate, because all actions of waste
must be ad exhoerediiationem.

So, if a writ of annuity be brought, and pending the writ the
annuity determine, the writ faileth for ever ; because the like
action cannot be maintained for the arrearages only.

When a vfxit is brought for two things, and it appears the
plaintiff cannot have any other action for the one of them, the
writ shall stand for the part that is good ; but where it appears
he can have another writ in another form for one, there the
whole writ shall abate ; because, where there can be no better
..„. „ writ brought for the parcel, it ought to continue ; but, if another

den V. Palmer ^*^'' ^^''^ ^^ brought for that parcel, it is bad, and ought to abate
Hob. 88. ' in toto. {b)

Rogers v. Cooke, Carth. 235. 1 Salk. 10. S. C. l Show. SG6. S. C. Hookin v. Quilter,
2Stra.l271. iWils. 171.S.C. Curtis v. Davis, 2 Lev. 1 1 0. Betts v. Mitchell, 10 Mod. 315,
Tate V. Whiting, n Mod. 196. Petrie v. Hannay, 3 Term R. 659. Jennings v. Newman,
4 Term R. 347. i Will. Saund. 285. a. notis.\\

(M) Where it shall abate by reason of another Action
brought for the same Thing.

T^HE law abhors multiplicity of actions ; and therefore when-
ever it appears on record, that the plaintiff has sued out two
writs against the same defendant for the same thing, the second
writ shall abate ; for if it were allowed that a man should be
twice arrested, or twice attached by his goods for the same thing,

of anpcal may j^y ^q same reason he might suffer in infinitum ; and it is not
e p ea e m necessary that both should be pending at the time of the defend-
ant's pleading in abatement ; for if there was a writ in being at
the time of suing out the second, it is plain the second was vex-
atious and ill ab initio.

275. Where

a prior suit depending, maybe pleaded to an information. 2 Hawk. P. C. 275. But it is
no good plea in abatement of an indictment, as it is of an appeal or an information, that

there

11 Co. 45.
Godfrey's
case.

Saund. 285.
Cas. Temp.
Hardw. 273.
S. P.

9 H. 6. 12.
Mo. 418. 539.
5 Co. 61.
Doctr. PI. 10,
67. Where
a prior writ

abatement
to a seconti
appeal.
2 Hawk. P. C

(M) Pendency of atioiher Action, ^

there is another indictment against the defendant for the same offence; but in such a
case the court, in discretion, will quash the first indictment. 2 Hawk. P. C. 367. [Fost.
Cr. Law. 104. Dougl. 227. Qu. Whether it be so in any informations but informations qui
tarn?]

But then it must appear plainly to be for the same thing: for 4 H. 6. 24.
an assize of lands in one county shall not abate an assize in an- Doctr. Pi. lo.
other county, for these cannot be the same lands.

llThe two suits must be between the same parties. A suit by Reeve v.
husband and wife against the wife's trustees cannot be pleaded in £^^^y» ^ ^™*
bar to a subsequent suit by her and her next friend, against her tu.464.
trustees and her husband, although the relief prayed is the
same. ||

In general writs, as trespass, assize, covenant, where the special 5 q^^ gj^
matter is not alleged, and the plaintiff is nonsuited before he Doctr. Pl.ii,
counts; though the second writ be sued pending the other, yet 12. Theol. 1.
the former shall not be pleaded in abatement, because it does not }X' ^'^^' §^^*
appear to the court that it was for the same thing ; for the first debitatus cs-"
writ being general, the plaintiff might have declared for a dis- sumpsit, the
tinct thing from what he demanded by the second writ ; but, defendant
when the first is a special writ, and sets forth the particular de- ^i^ ^ '^
mand, as in a pt'o^cipe quod reddat, SfC. there the court can other action '
readily see that it is for the same thing ; and therefore, though depending for
the plaintiff be nonsuited before he counts, yet the first shall the same mat-
abate the second writ, it being apparently brought for the same ^'^ ^" ^
thing. ^ ^ did not 'aiiego

that the plaintiff had declared in it; and by the court, — This is bad, because it cannot be tra-
versed, whether it be for the same matter or not. 7 W. B. R, Lill. Prac. Reg. 8. Mitchell
and King, 2 Barnard. K. B. 143. S. P.]

An action depending in an inferior court cannot be pleaded 5 Co.62. Spar-
to an action brouf^jht in one of the courts at Westminster for the ""^ ^J^^^^' ^^'
same thing. ^ [The plaintiff

counted upon several promises for work and labour in the parish of Saint Mary Le Boio^
London; the defendant jjleaded in abatement, that before this action brought the plaintiff
had libelled in the Admiralty for the same cause of action. Upon demurrer it was insisted for
the plaintiff) that this was within the rule in Sparry's case, and the whole court gave judg-
ment against the defendant, quod respondeat ouster. Fitzgib. 513. 5 G. 2. C. B. Ludfield v
Warden.] ||See 2 Wils. 87.11

11 If an action is brought in the Court of King's Bench or P^r Lord
Common Pleas, and the defendant pleads to it an action pending Hardwlcke
for the same matter in Ireland or the Plantations, this would be 1^^^'^^ Y^f"
no bar to the jurisdiction of the court here. And the law [a) (a)Diiion V
should be the same, if such a plea is pleaded to a suit in equity. Alvares, 4 Ves.

357.

And a suit pending in England is not a good plea in bar to a Bayley v.

subsequent suit in the Plantations for the same matter. Edwards,

3 Swanst. 703.

It has been determined, that if an action be brought in Ireland Per Lord

on a bond, and sued to judgment there, that judgment cannot Hardwicke,

be pleaded to an action in the courts here.jl SeeSris t.

Saunders, 4 Barn. & C. 41 1*.

The law will not allow two quare impedits to be brought for

the same presentation, viz. a second by the defendant against the

plaintifii when there is one pending in court by the plaintiff

fl'Jainst the defendant ; ct sic in brevi de partitioned because the

C 4 defrn.1-

24 ABATEMENT.

defendant can have the same remedy on the first writ as he could

on a second.
(a) Therefore The law is so watchful against all vexatious suits, that it will
it is n good neither suffer two actions of the same nature to be pending

plea '"''•"- for the same demand, nor even two actions of a dififerent na-
pats, that the ^ ,,%

plaintiff has ture. {0)

brought a replevin for the same thing, because in botn cases damages are to be given for that
caption. 1 H. 6. 27. Doctr. PI. 10. Sed qu. And see Comb. 229. and Skin. 388. [A re-
plevin depending in the sheriff's court, it seems, cannot be pleaded to trespass for taking cattle.
2 Wils. 87. White v. Willis.] So in an assize of darrein presentment, a quare impedit de-
pending for the same presentation is a good plea. Hob. 184. And a quare impedit is said to
oc depending when it is returned. 2 E. 4. 11.

Hob. 137. In a quare impedit brought by the Earl oi Bedford against the

(6) That where Bishop o^ Exeter Q.nd others, the defendants plead that theplain-
^espass is tiff had brought another quare impedit for the same presentation,
brought, and which is still depending and undetermined, with an averment
afterwards re- that it was the same plaint, avoidance, and disturbance ; the earl
plevmforjhe replies, that since his former writ purchased, the same church
there must not heing still void, he presented Heniy Curtis to the bishop, who
be more de- refused him, which is the disturbance he now complains of, and
fendants in the traverses that it is the same disturbance on which both actions
rcplevm than ^^j.^ brought : the defendant demurs ; and ruled, the writ
the action of should abate ; for though there must be a disturbance naturally
trespass, be- to maintain the action, yet the principal effect of the suit is to
cause it cannot recover the presentation ; and the nature of a quare impedit is to
tSe^vement ^^ ^"'^^ °" nonsuit or discontinuance, which this would defeat ;
that it is una ' ^^^' ^Y ^^is rule the plaintiff might bring a new one, without
eademque cap- leaving the former suit. And though in this case there was a
tw. Doctr. new defendant (6), yet the writ abated, because there were two
Iftheofhe/" q^are impedits against the same man; and therefore a fresh
action mii^ht defendant could no more enable him to bring a second quare
not be pleaded impedit, than a new disturbance could. But against several

in abatement, persons it is said a man may have as many quare impedits as he
avernngthe ^jjj^
fact to be the

same. In trespass against two defendants, they both pleaded in abateinetil another bill of tres-
pass pending against one of them : and three judges against Holt, who doubted, held the plea
good as to both. Carth. 96, 97.

Mayor, &c. of [If two actions be brought at the same time for the same
London v. B. thing, with some trifling variation, they may be pleaded each in

abatement of the other, averring that the cause of action in both

is the same.]
Boyccv. Dou- Pf while A. Is unlawfully imprisoned by B., C. commits an
glas, 1 Camp, assault on him, C. is guilty of the false imprisonment as well as
^^' B. i and \^ A. sues both separately, the pendency of one suit may

be pleaded in abatement of the other. ||
Allen, 34. If a second writ be brought tested the same day the former is

Gilb. Hist. abated, it shall be deemed to be sued out after the abatement of
C.P. 260. the first.

Dyer, 227. If ', an action pending in the same court be pleaded to a

Cartb^. 453. second action brought for the same thing, the plaintiff may pray
that the record may be inspected by the court, or demand oyer

517. Lord

(N) IVhere Defendant mat/ plead in Abatement or Bar, 25

of it, which, if not given him in convenient time, he may sigh Raym.347.
his judgment. " ^ 6 Mod. 122.

So, to an action of battery and false imprisonment brought in Cremer v.
K. B. the defendant pleaded in abatement another action de- Wickett,
pending for the same matter in the same court; the plaintiff ^^g qJ^j^^
replied, nul tiel record, and prayed an inspection of the record, 517. s.C.
without giving the defendant leave to rejoin : upon a demurrer
to this replication, the plaintiff had judgment, because this being
a record of the same court in which it was pleaded, the
plaintiff might have prayed that it might be inspected by the (a) Dyer, 227.
court, if any such there was. (a) The court held too, that upon
this plea the plaintiff might have prayed oyer of the record
pleaded, and for want of oyer might have signed judgment, which
is the quickest method of proceeding.

[To defeat an informer by a plea of this kind of his right of Comb v. Pitt,
suing, a defendant must shew a prior right attached in somebody ^r{j "'T' l^^%
else; and therefore if the pendency of another action by another g g Hutchin-
person for the same offence, brought in the same term, be son v. Thomas,
pleaded in abatement, it must be shewn on what particular day 2 Lev. i4i.
such other action was commenced, that its priority may be as- p^y^^fs^.
certained. So, if both actions were commenced on the same 21 69.
day, the defendant, it seems, may shew that the action, which he
states, was prior in point of time on that day, though it was for-
merly holden that the right in that case was attached in neither,
and the court could give no judgment.]

(N) Where a Defendant may plead either in Abate-
ment, or in Bar.

■y^HATEVER destroys the plaintifTs action, and disables Ventr. 249.

him for ever from recovering, may be pleaded in bar ; but ^ ^F^' ^^•

the defendant in such case is not always obliged to plead in bar, 2 Ld. Raym.

but may plead in abatement; as, in replevin for goods, the de- 982. 12 Mod.

fendant may plead property in himself, or in a stranger, either 182, 6 Mod
in bar or in abatement ; for if the plaintiff cannot prove property
in himself, he fails of his action for ever, and it is of no avail to
him who has the property, if he has it not.

Outlawry may be pleaded always in abatement, but not in bar, Co.Litt.i28.b,

unless the cause of action be forfeited. Doctr. PI. 595,

In personal actions where the damages are uncertain, outlawry

cannot be pleaded in bar; but in actions on the case, where the §l"'^oo^^°^'

debt, to avoid the law-wager, is turned into damages, outlawry 2 Ventr. 282.

may be pleaded in bar ; for it was vested in the king by the for- 3 Leon. 197.*

feiture, as a debt certain and due to the outlaw ; and the turning ^^o- ^''z. 204

it into damages, whereby it becomes uncertain, shall not divest ^*^"' ^^'
the king of what he once lawfully possessed.

Outlawry may be pleaded in bar, after it has been pleaded in 10 H. 7. 11.

abatement, becaue the thing is forfeited, and the plaintiff has no 2 Lutw. 1604.
right to recover.

Alienage may be pleaded either in bar or abatement; but with ^^o- Denizen,

this

81. 103.
Bull. Nisi Pri.
34.

20 ABATEMENT.

loCo.Litt. this difference (a), that alienage can be only pleaded in abate-

129. b. uient to an alien in league, but may be pleaded in bar to an

||See Brandon ^ijeu enemy, because the cause of action is forfeited to the king,

^T^'^i'r 23ll ^ * reprisal for the damages committed by the dominion in

(a) But 7M. of enmity.

this difterence, for in either case the ground of the plea is the incapacity of an alien to take,

or at least hold, that which is the object of the suit.

Harman v. P" ^" action on a policy, if the parties interested are neutrals

Kingston, when the policy was effected and the loss happened, and became

3 Cainp. 150. alien enemies before action brought, this can only be pleaded in

Flindt V. abatement ; for this only suspends the remedy, and if peace be

isSt, 260. ; restored it revives. ||

and sec 4 East, 502.

Combe v. Pitt, [The pendency of a prior action may be pleaded either in bar,

f ^^^' V^^' or in abatement ; though it is said in the case of Bains v. Blacks

Rep 21^6* hourrie {b) to be pleadable only in bar.]

IITnis applies only to popular actions.||

Carth. 136. In an action of debt on a judgment obtained, the defendant

(c)Carth. 1,2. cannot plead a writ of error brought and pending, either in bar

[ButQu.c/viJe Qj. jjj abatement; but in one place it is said (c), it may be pleaded

Ld. Ravin. 47.1 ^^ abatement, though not in bar. {d)

(d) But the court, on motion, will stay proceedings. IJTidd. 551. 1 145. (9th edit.)II

10 Mod. 112. A man may plead in bar or abatement to a sci. fa. as well as

to other actions.
6 Mod. 103. In replevin, if the defendant will take advantage of a variance

' ^'^^^ i^ the place where the taking is laid, from that in which it really
mult be ^^^* h® must plead it in abatement.

pleaded in abatement, and cannot be pleaded in bar. Salk. 3. pi. 8. 2 Ld. Raym. 1016.
Carth. 244. Show. 98. [But in Barnes, 353. it is said that it is considered as a plea in bar,
and not in abatement, it not being necessary to file any affidavit with it, or to plead it within
four days after the delivery of the declaration.]

Comb. 483. In debt on a bond the defendant pleads the condition for the

bIw ^ Ld payment of three several sums at three several days, and that he

Raym. 345. ^^th paid two of them at the days limited, and the third is not

yet come, and concludes in abatement ; and it was argued, that

this ought to be pleaded in bar, and not in abatement : for in

every plea in abatement the defendant ought to shew the plaintiff

how to bring a better writ, and here he shews that he ought to

have none at all, the day of payment of the third sum not being

yet come ; as, in an action for an attorney's fees, if the defendant

pleads that the plaintiff delivered no bill of them to him, he ought

to conclude in bar ; and of this opinion were the court.

Comb. 375. The plaintiff in bar to an avowry pleaded a distress for the

Sully V. same duty in other lands chargeable: and Holt said the plea

was nought ; for it should have been pleaded in abatement of

the avowry, that a former replevin was depending (if the truth

was so), or if determined, then levied by distress, et issint riens

QiTere.

Mayor and ||A mere misnomer of a plaintiff, whether a body politic or

urgcssca of natural, is pleadable only in abatement ; for a new writ may be

. ' * taken

(O) Bilatori^ Pleas, how restrained, 27

taken out by the right name ; but, if the existence of the person Stafiurd v.
or the corporation be denied, the plea is in bar : for if there be ^ p^JJ* \q^^'
no such person or corporation, there is an end of the action.

So, if in assumpsit by several partners, the defendant would Eckhardt v.
plead the bankruptcy of one of them, the plea should be in bar; i^^^^^^'j^^, ,„
because it shews that that person is incapacitated from suing at ^"^^ *
all. 11

(O) Dilatory Pleas, how restrained.

A S these pleas enter not into the merits of the case, but merely
tend to delay, the following restrictions have been laid upon
them.

By the statute 4 & 5 Ann. c. 16. for amendment of the law, [Ca) An affi-
no dilatory plea is to be received, unless on oath (a), or probable ^^^'' ^eaTir*^
cause shewn to the court. abatement

that the writ was never returned, though in giving oyer plaintiff had not set it out.
Sherman v. Alvarez, 1 Stra. 639. Ld. Raym. 1409. S. C. So, to a dilatory plea in the Crown
Office to an indictment ; Rex v. Grainger, 3 Burr. 1617. but not if pleaded at bar. Fost. 16.
llSo, to a plea to a scire facias against the heir and terre-tenants of the recoveree, that there
are other terre-tenants not returned. Phelps v. Lewis, Forrest, 139. So to aid prayer in a writ
of right. Onslow v. Smith, 2 Bos. & Pull. 584. || Want of addition requires none. Pr. R. 5.
Aflfidavit to the truth of it by the attorney sufficient. Lumly v. Foster, Barnes, 344. Where
the affidavit and plea were wrong entitled, the plea was set aside. Clixby v. Dines, Barnes,
348. So, where the affidavit to an information in the Crown Office was without any title.
Rex v. Jones, 2 Stra. 1161. The affidavit must be positive as to the truth of every matter
of fact contained in tbe plea: it must leave nothing to be collected by inference; for per
Dennison J. the words probable cause in the statute only extend to a matter of record, or
to some other collateral matter, as to the truth of which there cannot be a positive affi-
davit. Pearce v. Davis, Say. R. 295. Jilt cannot be admitted after the plaintiff has
signed judgment for want of it. Phelps v. Lewis, vbi supra)\ For the form of the affidavit,
see Lill. Entr.]

No pleas in abatement shall be received after a respondeat y, ^,, ,
ouster, else they would be pleaded in infinitum. 2 Saund. 4*i.

[But it was formerly holden that more dilatories than one might be pleaded. The!. D. 165.
a. p. 6. Bract; 400. b. Finch's Law, oG3.'\ ||And so still, where they are of different degrees.
Thus, the defendant may plead to the person of the plaintiff; and if that be overruled, he may
plead to the form of the writ.^ Com. Dig. tit. Abatement (I), 4. citing Theol. Dig. lib. x.
c. 1.11

They are to be pleaded before imparlance. yelv. 112.

Lutw. 24. 1 Stra. 520. HTidd's Prac. 659. (9th edit.) and ant^ (A).|j

[They cannot be pleaded at the same time with a plea in bar.] Cas. Temp.

Hardw. 135.

When issue is joined on them, if found against the defendant 2 Show. 42.
it shall be peremptory. [2 Wills. 367.]

Nothing shall be pleaded in abatement of a scire facias upon a Salk. 2, p. 5.
judgment that was pleadable in the original action ; for it would
be unreasonable that the defendant should disable the plaintiff
from having his execution after he has admitted him able to have
his judgment.

Though a plea in bar, being certain to a common intent, is Cro. Jac. 82.
good ; yet every dilatory plea must be certain to every intent. [3TermR.i85.]

[A dilatory plea must be pleaded within four days (the first Irnp.K.B.259.
and last both inclusive) {h) after the declaration is delivered, if £ j*^^-^\

28 ABATEMENT.

T. Webb, it be in term time ; but if in vacation, or within less than four

iTcrm R. 277. (^ays from the end of the term, it may be pleaded (there being a
(c) Doughty V. special imparlance) within the first four days inclusive of the
4Tcrm7t.520. "6xt term, as of the preceding term; and within that time it must
Brandon v. be.//erf, (for it is not sufficient that it be delivered only,) whether
Payne, Ibid, a rule to plead be given or not. (c) Sunday is reckoned as one
\\^ i-^A^ ' ^^ ^^^ ^'^^^ days, though it happen to be the last, in which case
s^? 1 Chitt. ^^® P^^* mvLsi be filed on the Saturday. (<f)

R. 704.||~ (rf) Harbord v. Pcrigal, 5 Term R; 210. ; but contrd Lee v. Charleton, 3 Term R*
642.

jT . It is inadmissible after the rule for pleading is expired (a), or

V.Ward after forfeiture of a bail-bond.

Barnes, 331. {a) 3 Salk. 519.

Kilwick V. It is not an issuable plea within an order for time to plead

Maidman, ^-^jj j|^g ^g^^i terms.

1 Burr. 59. *

Wilkes V. Earl But the court will, ex dehito justitice, compel the plaintiff to
**V^m'^^''' entitle his declaration of the true day on which it was filed, in

2 vvi Is. 256. order to give the defendant an opportunity to plead in abate-

ment.
Hutchinson v. |j And a declaration, whether it be in chief or de bene esse, is
^t*"'r °"^y ^^^ ^^^^ from the time of notice ; so that the four days in

"^™ * which to plead in abatement do not begin to run till after

notice.
Dimsdale v. If the defendant put in bail within the four days, and give

Nielson, ^ notice of justifying them, he may then plead in abatement ;
BinnsV°° ^"^ ^^^ P^^^ ^^^ stand good, should the bail be ultimately per-
Morgani 11. fected.

East, 411. It is the' same whether in a town or country cause. Hopkinson v. Henry,
13 East, 170.

Douglas v. But the defendant cannot plead in abatement before the plain-

?^u"'. o . tiff has declared.
2 Chitt. R. 7.

Saunders v. ^or before defendant has put in special bail, or has appeared.

Owen, 2 Dow. & Ry. 252. Wakefield v. Marden, 2 Chitt. R. 8.; but see 4 East, 348. 4 Maule

& S. 332.

^ ^^ If a plea in abatement is not signed by counsel, the plaintiff

De Norman- --j ^r-*- 14.11

ville v. Meyer, ^^y sign judgment, for it is no plea at all.

1 Chitt. R. 209.; and see 3 Taunt. 386.

Jennings v. "^O ^^^^ ^^ ^'^^ ^^^^ ^^ ^^^ time.

Webb, 1 Term R. 277. ; and see 5 Term R. 210. 7 Term R, 298.

p P So if no affidavit of the truth be annexed, or a defective

Forre5*i39. affidavit.

Tidd, 640. Bray v. Haller, 2 Moo. 213. Richards v. Setree, 3 Price 197. Forrest, 144.

1 Stra. 638. ^^ ^^ plaintiff may move the court to set it aside.

2 Stra. 705. Tidd. 640. ; ted vide 2 Moo. 213.

Rex v Cooke ^"^ ^^^ court will not, upon motion, quash a bad plea in

2 Barn. & C. ' abatement.

618. 4 Dowl. &R. 114. ; and see 4 Taunt. 668.

Though the affidavit is sworn before the defendant's attorney,
MrtTewman. the plea is not a nullity. ||

3 Maule &S. ^54.

(P) Of

(P) Of the Manner of Pleading in Abatement, <§r. 29^

(P) Of the Manner of pleading in Abatement, and
the Proceedings and Judgment on such Plea.

nPHE defendant cannot plead two outlawries, or two excom- Carth. 8, 9.

munications in abatement, duplicity being a fault in abate-
ment as well as in bar.

In pleas of abatement which relate to the person, there is no Salk.4. Carth.
necessity of laying a venue, for all such pleas are to be tried j^^' ^^^ ° *
where the action is laid. IJNeale v.

De Garay, 7 Term R. 243.j|

If a defendant plead matter in abatement and conclude in bar, 3 Roll. Rep.
this shall be esteemed a plea in bar, and the court will give final 64. Lev. 312.
judgment thereupon; because by pleading to the action the writ Mod. 214.
is admitted to be good, and he puts the whole matter upon his f ^^"", ^^^'
PJea.(«; of Medina and

Stoughton, 1 Ld. Raym. 595. Holt said, that if a man plead matter which goes in bar, but
begin and conclude his plea in abatement, it will be a plea in abatement ; for it is the beginning
and conclusion that make the plea. See 1 Sid. 18f?, 190. But if he begin in bar though he
conclude in abatement, or conclude in bar though he begin in abatement, it will be a plea in
bar. Vide also 1 Ld. Raym, 694. JlSee Godson v. Good, 6 Taunt. 587. 2 Marsh. 299. where
this doctrine was confirmed. ||

So, if a man plead in bar, and conclude in abatement, this 6 Mod. \03.

shall be esteemed a plea in bar ; because he could have no writ, v'^J^u* t\ f *^'

if he could have no action ; and where there could be no action, n^\ ggg \^f,!^^
the dispute about the writ would be insignificant, {b)

A plea in abatement may be good, though it contains matter Mod. 214.

in bar; but this is to be understood of such pleas as maybe loH. 7. 11.
pleaded either in disability or in bar ; as alienage, outlawry, S^c.

If a matter, which may be pleaded either in abatement or bar, g^ij^^ j^y^

be pleaded in abatement only, if the plaintiff reply or demur in 10 Mod. 112.

bar, this will be a discontinuance (c) ; because the plaintiff does Carth. 107.

not maintain his writ, and the defendant may have other matter 5,^ J^* ?).^'

in bar, from which he would hereby be excluded. C.P.259. See
2 Ventr. 179. (c) But it was aided by verdict. Salk. 218. [So, the court will give leave to
amend. 1 Wils. 502.]

But, if the defendant begin such a plea in bar and conclude Ventr. i36.
in abatement, or begin in abatement and conclude in bar, there, v.""*, *
the plaintiff may reply or demur to it, either as a plea in abate- r^^n qJ. if j^
ment or in bar ; and if he demur, or plead to it as a plea in bar, this case the
then the judgment is final [d) : for he has closed widi the de- plea be not

fendant to put the plea to the judgment of the court, as a bar to if"pe''f^ct, and
^1 ^. ^ * J t) » tiien, though

the action. the plaintiff

have discontinued he is entitled to judgment of respondeat ouster. Bonnar v. Hall, Ld.
Raym. 339. Lug v. Godwin, Id. 393. Marshall v. Charleton, 1 Barnard. K. B. 468.]

But, if he demur, or reply in abatement, as he may, then the 3 Lev. 120.
judgment is quod defcndens respondeat ouster ; for then only the r%]; '*''* ^°^'
writ is put in judgment before the court; and the plaintiff, by do not' w^rant
putting the writ only in judgment to the court, has waved the the doctrine
benefit of putting that matter in judgment to the court as a plea in the text.]
to the action; and if the judgment were not in abatement, it
would not be pursuant to the defendant's prayer.

Every

$0 ABATEMENT.

5 Mod. 152. Every pica in abatement is either to the writ or count; If the
said areuendo. action is brought by original, then the plea is petit judicium de
11(a) 'lliis is brex>ey and it must conclude in the same words (a): it'it is to the
so where the tleclaration, then it must he petit jiuUcinm de hilld et narrationey
mauer an- ^^^'* ^^^^" ^"^ narratio are the same, {b)

parent on the writ; but where it is of matter extrinsic, it is said not to be formal to beg^t
with praying judgment of the writ, but only to conclude the plea in that manner. Moor,
30.pl. 99. 1 Lutw. 11.; and see 2 W. Saund. 209. note(l).|| [(A) All pleas to the jurisdiction
conclude to the cognizance of the court, praying "judgment whether the court will have fur-
ther cognizance c J the suit :" picas to the disability conclude to the person, by praying "judg-
ment if the said /}.,the plaintitf ought to be answered:" and pleas in abatement (when the
suit is by original) conclude to the writ or declaration, by praying "judgment of the writ or
declaration, and that the same may be quashed," cassetur, made void, or abated; but if the
action be by bill, the plea must pray "judgment of the bill," and not of the declaration, the
bilt being bicre the original, and the declaration only a copy of the bill. 3 Bl. Comm. 303.]
||Whcre the proceedings were by bill, and the plea prayed judgment of the writ and declar-
ation founded thereon, it was held bad on demurrer. Attwood v. Davis, 1 Barn. & A. 172.
and see 2 Maulc & S. 484. ||

10 Mod. 112. It is said to be the conclusion of a plea, and not the matter of
Show. 4. it, that makes a plea in abatement; so that should a man plead

ll\ TJ?*"^' ^^^* ^ P^^^ ^^^^ ^^^ ^^^ matter of it might have been pleaded in bar,
erroneou"- ^^^ conclude petit quod breve cassetur, it would be but a plea in
it would be a abatement (c), and the judgment would be no other than a
plea in bar, respondeat ouster; so, vice versa, a plea in abatement, pleaded in
and final judg- fo^jjj ^f ^ pjg^ -^^ |j^_ would be a plea in bar, though an ill
ment would ^„„ fj\ ^ a

given on ^ne. {d)

it; for if the plaintiff has no cause of action, he can have no writ. See 2 W. Saund. 209.
c. notd. {d) And upon demurrer to it, there will be a general judgment for the plaintiff, not
judgment oi respondeat oxister. Nowlan v. Geddes, 1 East, 634. Wallis v. Savil, 1 Lutw. 41.
There seems however to be this distinction between pleas in abatement and pleas in bar ; that
in the latter the court will give that judgment, which upon the whole record appears to be the
proper judgment, though it be not that which the party has prayed for ; but that in the former
they will give only the particular judgment prayed for. Le Bret v. Papillon, 4 East, 502.
Chamley v. Winstanley, 5 East, 271. Rex v. Samuel Shakspeare, loEast, 85.||

6 Mod. 236. If a dilatory plea be pleaded, and the plaintiff take issue upon
per Holt. jj^ Yie may conclude with a petit judicium et damna, because there

final judgment shall be : but, if a dilatory plea be pleaded, which
the plaintiff does not deny, but confess and avoid, he must con-
clude in maintenance of his writ ; as, if the defendant plead an
attainder in disability of the plaintiff, and he plead a pardon, he
(e) 3 Mod. must not conclude with a petit Judicium et damna {e), but in
281. S. P. maintenance of his writ

3 Lev. 120. If there are four defendants, and after several continuances

three of them plead the death of one of them in abatement, viz,

petunt judicium de breve et quod breve illud cassetur; this is ill in

its conclusion, and should have been petunt judicium si curia ulte-

rius p'ocedere velit.

Salk. 220. If the defendant demur in abatement, the court will give final

pL 9. 6 Mod. judgment, because there can be no demurrer in abatement; for

wfmbtsli V "* ^^the matter oi abatement be dehors, it must be pleaded; if in-

Willoughby, trinsic, the court will take notice of it themselves.

PI. Comm. 73. there is an instance of a demurrer in abatement of a writ, for an insufficiency

appearing on it, which authority is countenanced by Theol. Dig. 1. 15. c, 9. §1. Dy. 341.

Lutw. 1644. This precedent from Plowden was cited by Ei/re J. when the judgment in the

text was given. The judgment upon the demurrer, if against the defendant, will be final.

3 Lev.

(P) Of the Manner of Pleading in Abatement, S^x, SI

3 Lev. 223.] But a demurrer in abatement to an indictment for a capital ofFence, or appeal
of death, shall not conclude the party, but he shall have leave to answer over to the offence.
2 Hawk. P. C. 354.

If there be two defendants, and they plead two several pleas Hob. 250.
in abatement^ and there be issue to one, and demurrer to the
other, if the issue be found for the defendant, the court will not
proceed on the demurrer; et sic vice versa; for in both cases
the writ being once abated, it would be unnecessary to judge
whether it ought to abate on the other's plea.

Where the matter of abatement appears on the face of the Moor, so.
record, the plea should begin and end with a petit judicium de Carth.365.
brevi; but where the matter is dehors, the defendant should only f^e^c'i^^fqs
end his plea with a petit judicium. ijSee 2 Will.

S%und. 209.11

On the plea in abatement, no advantage can be taken of the Salk. 212.

errors in the declaration (a) ; as nothing but the writ is then in qZI Y^^q'

question, for nothing else is pleaded to. u) Biit it

seems it may, if the matter of the plea in abatement be pleadable in bar* Lutw. 1604.

If on a plea in abatement, a respondeat ouster is awarded, and Carth. 447.

afterwards the defendant pleads in chief, and there is a verdict c m d "^qg^^*

for the plaintiff, yet, if the plea in abatement does not appear to Car th. 499.
have been entered on the nisi-prius record, judgment will be
arrested ; for, it being entered on the plea-roll, (which was in
court,) it must be mentioned in the nisi-prius roll, otherwise it
does not appear that it was a verdict in the same cause.

The judgment for the defendant on a plea in abatement is quod Yelv. 112.

hrve or narratio cassetur, and for the plaintiff, a respondeat ouster; 2 Show. 42.

but if issue be joined on a plea in abatement, and it be found for ^^^'y^^^'

the plaintiff, it shall be peremptory against the defendant {b) ; j W\\s. 302.

and the judgment shall be quod recuperet, because the defendant {b) Though

choosing to put the whole weight of his cause on this issue, when the tenant or

he might have had a plea in chief, it is an admission that he had ^^emandant

.Pic I \ who 10ms

no other defence, (c) -^^^J^ be an

infant. 1 Lev. 163. But not so on indictments for capital offences. 2 Hawk. P. C. 334. [(c) In
an action that sounds in damages, the jury who try this issue must assess the damages: their
omission to do so cannot be supplied by a writ of enquiry, but a venire facias de novo must be
awarded. Eichorn v. Le Maitre, 2 Wils. 368.]

[But on a demurrer to a plea in abatement, the judgment Theol. Dig.
against the defendant shall only be to answer over; because, 1. 16. c. 11.
though issues in fact are within the conusance of the party, \l^' \a'c

° . 1 ^ *^ •" 163. So, if

issues in law are not. the demurrer

be to a replication to a plea in abatement. 1 East, 542.1|
And the same judgment shall be given, though the defendant Putt v.

join in demurrer to it, as to a plea in bar, because the fault Nosworthy,
' . . , -.1 ^1 I • ^-rp r » I Ventr. 135.

originates with the plaintiff. But see Lutw.

197. 1643. 1665. But see above, whether this be not a discontinuance?

In a plea in abatement in C. P. the plaintiff may enter a 7iil Osborne v.
capiat per breve without leave of the court.] Haddock,

. Where, w^onn respondeat ouster, the defendant pleads the ge- Salk.4. p. 11.
neral issue, the plaintiff shall sign judgment, if the defendant's

attorney

ABATEMENT.

Salk.7. p. 18.

Harries V.
Jamieson,
5 Term H.
555.

Powell V.
FuUerton and
another, 2 Bos.

& Pull. 428.

and see 2 Wm.
Saund. 210. b.

Spencer's
case, 6 Co. 10.

6 Co. 11. a.
1 Salk. 393.
Cro. Car. 294.

6 Co. 10. b.

Lutw. 296.
1 Salk. 593.

attorney on delivering back a copy of the issue will not pay for
it ; and it seems that the old course was to deliver in a copy of
the whole record, viz. the declaration, plea in abatement, Sj-c.
and issue ; but the court made a rule that for the future a copy
of the declaration and issue should only be paid for.

Upon a respondeat ouster, no notice need be given of it, for
the defendant is supposed to be attending his cause in the paper
to maintain his plea.

II If a plea in abatement profess to answer the whole declar-
ation, and yet in truth answer only part of it, it will be bad.
Thus on a writ in debt for 1066/. the plaintiff declared for
1000/. borrowed by the defendant of the plaintiff, and in a second
count for 661. for interest of money lent by the plaintiff to the
defendant. The defendant pleaded in abatement of the writ,
that " the said sum of money in the said writ mentioned, and
thereby supposed to be borrowed of the plaintiff," was borrowed
by the defendant and others, and not by the defendant sepa-
rately. The plea was demurred to because it answered only
one of the causes of action, viz. that mentioned in the first count ;
and the court held it bad for that reason.

But, if a plea in abatement contain matter which goes in part
abatement of the writ only, and conclude with a prayer that the
whole writ may be abated, the court may abate so much of the
writ as the matter pleaded applies to. |l

[(Q) Of the Writ by Journies Accompts.]

HEN an abatement of a suit happens without any fault
imputable to the plaintiff, he is permitted to sue out a
fresh writ by journies accompts ; which is quasi a continuance of
the first writ, and placeth him in the situation in which he
would be supposing that he were still proceeding on that writ ;
for the defendant can avail himself of no matter which ariseth
subsequent to the time of the first writ, and could not have been
pleaded to it.

But this second writ is not suable at any distance of time after
the abatement of the first, but must be prosecuted per dietas com'
putataSf that is, recently, as soon after as reasonably may be.
What is a reasonable time is a matter in the discretion of the
court.

This writ being in a manner a continuance of the first, must
of course be brought in the same court, and for the same matter.
It ought regularly too to be between the same parties ; but it
may be used by another person than the original plaintiff, if
there be a privity between them ; as, if the original plaintiff be
executor until his son come of age, the son upon coming of age
may take out this writ, but not so, if he be administrator du-
rante niinore cctate of the son ; for in that case, as they derive
their titles from different persons, the one from the ordinary, the
other from the testator, there can be no privity.

(R) Foreign Plea. S3

If the plaintiff in qume impedit die pending the writ, and after Bro. Joum.
I'lii II- -11 Ace n 9."^

the SIX montlis have elapsed, his executors are not entitled to q j^j {qq
this writ. "'^"

A judicial writ shall never be by journies accompts, because it eCo. lo. 2.
never abates for want of form.

(R) Foreign Plea.

A FOREIGN plea (a) is when the defendant pleads such plea 2 Lil. Pr.
as carries the cause out of the court wherein it is laid, by Reg- 374.
shewing that the matter alleged is not as to its trial within the 9^^' ^°,^'
jurisdiction of that court. ingrosTed o^n

parchment, and signed by counsel. 2 Lil. Reg. 374. jjSee the form of it in Lil. Entr. 475.1|

As this plea is merely dilatory, and ousts the court of its juris- ^it- Rep. 230.
diction, it was holden, even before the statute of 4 & 5 Ann. f'^'^'|^^'j
c. 16. that it must be on oath, and before imparlance {b) ; and if 97. Vj) Ventr
the defendant refuse to make oath of the truth of his plea, the iso.
plaintiff may sign judgment as upon a nihil dicit.

If a defendant in a corporation court plead a foreign plea, Hetl. 126.
which is collateral ; as, in debt upon a bond, if he plead a release Lit. Rep. 256.
made in a place out of the jurisdiction of the court, it need not ^' ^* ^^^°^^'
be received without oath : but, if in covenant, or debt for money
to be paid at another place, he plead payment accordingly, or
covenants performed in the place limited, which was out of their
jurisdiction, it ought to be i-eceived without oath.

If there be a cause removed from Canterbury into B. R. by Pasch. 26.
habeas corpus^ and the plaintiff declare here upon a demise in Car. 2. in^.U.
London of a house in Canterbury ,- if the defendant plead an entry jyj^j j jg
and ouster in Canterbury^ so, that this cannot be tried here; this is S. C.
not a foreign plea, because it arises naturally upon the case : so, if
matter arise within two counties, and the plaintiff lay it in one,
it is not a foreign plea for the defendant to plead any matter in
the other.

In real actions in London{c) if a foreign plea be pleaded, it 3 H. 4. 12.

shall be sent into the Common Pleas to be tried (tZ); but otherwise \?^ - "^,
.. - - , . V / ' loreign pleas

It IS in personal actions. in Wahs shall

be fried, vide the statute 34 & 55 H. 8. c. 26. (rf) This is within the equity of the statute of
Glouc. c. 12. which vide expounded 2 Inst. 324, 32 5. which extends to real actions only wherein
voucher lies, and not to personal. 2 Leon. 57. Saund. 98.

Ancient demesne, and all pleas of privilege, are pleas to the ^ Mod. 335.
jurisdiction, but not foreign.

If a person be sued in an inferior court on an obligation con- Style, 22s.
ditioned to pay money out of the jurisdiction of such court, and J^"||"^y ^•
the defendant plead payment according to the condition ; this is *^ ^^'^'
not such a foreign plea as need be on oath.

So, if in covenant brought in London for payment of a certain Sid. 234.
sum of money on the return of a ship, the defendant plead, that Collins v.
the ship returned to such a place in Cormmll^ and thereupon the '^""""•
plaintiff demur, this plea is not good ; for the matter being tran-
sitory, the defendant cannot oblige the plaintiff to change his

Vol. I. D action,

ABATEJVIENT.

Ventr. 180
St. Aubin
V. Cox.
1 Mod. 81.
S.C.

Carth. 402.

Chumley t.

Broom.

5 Mod. 335.

S.C. 12 Mod.

123. S. C.

6 Mod. 146.
Sparks v.
Wood.

sLutW. 1023.

1 p. Wms.
476. pi. 135.

action, but must plead to it in such place as he had laid it : and,
had the matter been local, then it would have amounted to a
foreign plea, which must have been put in on oath.

But, where a prohibition was prayed for to the court of the
Compter in IVood Street^ London, to an action of debt there com-
menced, for that the defendant had pleaded before any imparl-
ance, that the cause of action did arise at a place out of their
jurisdiction, and offered to swear his plea, and they refused to
accept this plea ; upon this matter a prohibition was granted ;
for inferior courts have not cognizance of transitory things
which arise in places out of their jurisdiction : but then it is not
sufficient to surmise such matter for a prohibition ; but a plea to
that effect must be tendered in the inferior court, and that before
imparlance, and it must be on oath, and then, if refused, a
prohibition shall be granted, or upon such refusal a bill of excep-
tions may be made.

In debt brought in B. J?, the plaintiff lay the visne in such a
place within the county palatine of Chester^ which county was
also in the margin of the declaration : the defendant without
imparling pleaded by attorney, that he is, and at the time of
the action brought was, resident at the said place within the
said county ; and so prayed judgment, whether the Court of B. It.
ought to hold plea of this matter. The plaintiff taking this
to be a foreign plea rejected it, as not being on oath, and
signed judgment : hvitper Holt C.J. — A foreign plea is where
the action is carried out of the county where it is laid, which in
this case was not done ; so that this is only a plea to the juris-
diction of the court, which is never sworn ; so the judgment
was set aside.

In debt brought in London, a prohibition was moved for, and
ruled nisi, upon suggestion, that the defendant had tendered for
plea below, that the cause arose out of their jurisdiction, and
offered to make oath of the truth of his plea; and it was shewn,
that he tendered his plea after the court was up ; whereas it
should be in propria persona, and in court ; and though an
affidavit was offered in B. R. of the truth of his plea ; and one
lurner's case was quoted, where a prohibition had been granted
upon such an affidavit here above without oath of it below ; yet
per Powell, Gould, and Po'jois, absente Holt, the rule was dis-
charged ; for in all pleas that oust a court of jurisdiction, whether
inferior or superior, there must be oath in tliat very court of the
truth of the plea.

If one be sued in an inferior court for a matter out of the juris-
diction, the defendant may either have a prohibition from one of
\he \BiVf conxis oi Westminsta-hall ; or, in regard this may hap-
pen in a vacation, when only the Chancery is open, he may move
that :ourt for a prohibition : but then it must appear by oath
made that the fact arose out of the jurisdiction, and that the de-
fendant tendered a foreign plea before imparlance, which was
refused. And if a prohibition has been granted out of Chancery

imp-o-

ACCOMPT. ^

impravidif and without these circumstances attending it, the court
will grant a supersedeas.

If it appear on the face of the declaration, that the matter is Id. 477.
out of the jurisdiction of the court, then a prohibition will be («) In a
granted without oath of having tendered the foreign plea. And "^^^on for a
in these cases equity imitates the common law. {a) [^ an eccle-

siastical court, as to more than appears on the face of the libel, there must be an affidavit of
the truth of the suggestion. 2 Saik. 549.

On a rule to shew cause why an attachment should not be Hil. 12G. 2.
granted against the mayor of Marlborough for refusing to accept y ?'
the defendant's plea in his court, it was holden that it was not CuU. llSee
sufficient for a defendant in a court below to bring his plea into Litt.R. 236.
court, and offer to make oath of the truth of it, but that he must * ^'d. 234.
tender his plea with an affidavit annexed of the truth thereof, and ^ Salk 515 il
that this must be done before a general imparlance, but he may '

pray a special imparlance, and then come at the next court and
plead. It was also holden, that the proper way of proceeding
was not by attachment, but that a prohibition should be moved
for. And so, in the principal case, the rule for an attachment
was discharged.

ACCOMPT.

•^PHE proceedmffs m this action bemg difficult, dilatory, and Salk. 9.
J- • /7\*^-..- ij 1 -71 •£•*!. i. Garth. 89.

expensive (^), it is now seldom used, especially ir the party q]^^^ q^ 249

have other remedy, as debt, covenant, case ; or if the demand Vern. 283.
be of consequence, and the matter of an intricate nature ; for in 47o. 2 Vern.
such case it is more advisable to resort to a court of equity, where \J^' Eq. Ca.
matters of accompt are more commodiously adjusted, and deter- 2 Ark 410.
mined more advantageously for both parties ; the plaintiff being 2 Ves. sss.
entitled to a discovery of books, papers, and the defendant's [(^) From the
oath ; and on the other hand, the defendant being allowed to experiment
discount the sums paid or expended by him ; to discharge him- actjon Jq*^
self of sums under forty shillings by his own oath (provided he the case of
swears positively, and not as to belief only) ; and if by answer or Godfrey v.
other writing he charges himself, by the same to discharge him- Simnders,
self, which will be good, if there be no other evidence : farther, j^g proceed-
all reasonable allowances are made to him ; and if, after the ings seem not
accompt is stated, any thing be due to him upon the balance, he ^o deserve

is entitled to a decree in his favour. f « character

here given of
them. A matter which had been fruitlessly depending in Chancery upwards of twelve years,
was thoroughly examined, and finally determined in this form of action in the course of two
years,]

D 2 JlAnd

36 ACCOMPT.

13 Vm. 876. IJAnd from thus being able to afford a more easy and more

complete remedy in matters of accompt, courts of equity now
assume in those cases a concurrent jurisdiction with courts of law.
Dinwiddle r. Jt is to be remembered, however, that to sustain a bill for an

f ■^'T fvv^'l accompt there must be mutual demands, except in the case of
v.^Cooper,^ ' dower or of a steward, which stand upon their own specialties.
Scac. 1791*. The case of executors (a) upon payments made to their testator
cited I&id. may be another exception. 1|

We shall, therefore, under this head, but briefly consider,

(A) Against whom, either by the Common Law, or by

Statute, this Action lies.

(B) Of the Manner of bringing Accompt, with respect

to the Persons against whom it is brought; and
herein of charging one as Receiver when Bailiff,
et vice versa.
'C) The Nature of the Demands for which it may be
brought.

(D) In what Cases this is the proper Action, or some

other may be brought.

(E) What shall be a good Bar to this Action.

(F) Of the Auditors, and what shall be a good Dis-

charge before them.

(G) Of the Judgment, and subsequent Proceedings.

(A) Against whom, either by the Common Law, or by
Statute, this Action lies.

sH. 4. 12. b. "DY the common law, accompt lay only against a guardian in

Co. Liu. 172. -*-' socage (i), bailiff, or receiver, or by one in favour of trade

F N B 117 E ^"^ commerce, naming himself merchant, against another, nam-

2 Inst. 404. ing him merchant, and for the executors of a merchant; for

nCo. 90. a. between these there was such a privity, that the law presumed

2 Roll. Abr. them conusant of each other's disbursements, receipts, and

ZJIP" acquittances. W

Marlcbridge^ 52 H. 3. c. 17. is usually recited in the writ, as if the writ were warranted by
that statute only. Mayn.487. F. N. B. 118. (A.) But accompt lay against the guardian in
socage at common law, and the statute was merely in affirmance or declaration of it. Co.
Litt. 89. Cro. Car. 2i.'9. (c) By the prerogative persons could be charged as accomptants,
notwithstanding a want of privity. 1 1 Co. 89. 2 Roll. Abr. 161.]

1 Leon. 219. The Statute of 13 Edw. 1. cap. 23. gives an action of accompt

?(i)B^fT^^ ^° executors; the 25 Edw. 3. st. 5. cap. 5. to executors of exe-

thLlast' cutors; the 31 Edw. 3. c. 11. to administrators; and by the

•tatute, if Statute of 4 Ann. c. 16. sect. 27. (d) actions of accompt may be

one joint-te- brought against the executors and administrators of every guard-

(B) Of the Manner of bringing Accomptf t|^. , 37

lan, bailiff, and receiver, and by one joint-tenant, tenant in nant,ortenant
common, his executors and administrators, against the other as in common,
bailiff (e) for receiving more than his share, and against his exe- fu*^^' ^^
cutors and administrators. tjjg other '

could not have this action, unless he actually appointed him bailiff or receiver. Co. Litt. 172. a.
186. a. 200. b. So, if there had been two executors, and one had received all the debts of
the testator; for between these there was not such a privity as the law required. Bro. tit.
Acconipt, 58. 59 E, 3. 28. [But, if two guardians were in comnjon, and one took the entire
profits to his own use, accompt lay, and the count was to be against him as receiver to theii
common use. So, of co-partners ; but not so of tenants in common, for they might have an
assize. F. N. B. 118. J. One joint lessee for years might have accompt against the other, if
he took the issues and profits to his own use ; for he would otherwise be without remedy, as
he could not bring an assize. 39 E. 3. 27. b.] \\(e) But one tenant in common cannot charge
the other as receiver. Walker v. Holyday, Com. R. 272. And when he would charge him
as bailiff, he must state in the declaration that he and the defendant are tenants in common,
and that the defendant has received more than his share, else he will not bring his case within
the statute. Wheeler v. Home, Willes's R. 208. Vin. Abr. tiu Joint-tenants (R), a. pi. 4.
notes, S. C.||

Though an infant may be an executor, or may be charged in Roll. Abr. 117.
trover, being a tort ; yet, if he be made factor, bailiff, or receiver, p ^' y-^^^-
he shall not be accounUible for what he does during his infancy, g p ^^^
either in law or equity, for the same reason that other acts of his Ca. Eq. 6.
bind him not; therefore when such a one is appointed factor, his p'-3'
friends should give security for his accounting.

If I make J. S. my bailiff or receiver, and he make a deputy, F.N.B.irg.
I must have accoinpt against the bailiff or receiver himself, and ■* Leon. ,■52.
not against the deputy, for the receipt of the deputy was to the ^!^!, ji Yf "'*
use of his master. Potts, where in

Chancery, on exceptions to a Master's report, it was holden sufficient for a servant or
apprentice, in answer to a bill for an account, to say in general, that whatever he received was
by him received, and laid out again by his master's orders. But he must disclose this matter
in his answer. Vern. 1.36. Harrison v. Hart, Com. R. 41 1. Cary v. Webster, Stra. 480. But,
where on a bill for an account, and discovery of money received by defendant on the behalf of
one who became a bankrupt, he pleaded that he received it only as a menial servant to the
bankrupt, and had accounted for it to him already, and that the commissioners had examined
him on interrogatories; the plea was overruled. Wagstaff v. Bedford, Vern. 95. 2Ventr.
358. S. C. Eq. Ca. Afar. 6, p. 5. S. C. cited with a query, whether there were not circum-
stances of fraud in the case, or a combination between the bankrupt and servant.] East India
Company v. Henchman, I Ves. jun. 289.

An apprentice by the name of an apprentice, is not charge- 1 1 Co. S9. b.
able in acconipt. Though he

^ IS not charge-

able for the ordinary receipts upon his master's trade, yet upon collateral receipts, which con-
cern not the ordinary trade of his master, he is chargeable as well as another. 3 Leon. 6.5.
But then he must be charged as bailiff or receiver. 2 Inst. 379, 5«0. [Chancery will decree
an account against the administrator of an apprentice employed as a factor. Eq. Ca. Abr. 6.
p. 2.]

(B) Of the Manner of bringing Accompt, with respect
to the Persons against whom it is brought ; and
herein of charging one as Bailifi'when Receiver, et
vice versa.

TF the king appoints J. S. or he of his own head takes upon 4 Co. 1*.^,.
himself the charge and care of the estate of a lunatic, he is

D 3 but

^S ACCOMPT.

but in nature of a bailiff, and accountable to the lunatic, his exe-
cutors or administrators.
Co.Litt. 172. ^ ^'^^ s^^^' "O'^ t)e charged in accoinpt^ as surveyor, comp-
(a) So. if a troller, apprentice, reive, or heyward, nor shall a disseisor (a),
disseisor ap- or other wrongdoer, be so charged ; for, to maintain an action
points J. S. qP accompt, there must be a privity either in law or by the pro-
his rents vision of the parties,

the disseisor cannot have a writ of accompt against J. S. 5 Leon. 24. Dalt. 99. S. P.

oT? n AK At common law, if a man were disseised, and his entry taken

2 Roll. Abr. i i i i *• *u c*

550. (A) But away, he could never recover, by any action, the mesne profats ;

whether he but if the disseisor made a feoffment in fee, by the statute of

could have Gloucester^ the disseisee in an assize {b) might have recovered

an action o damages for the mesne profits, being a continuation of the first

trespass, seems » i » o

to have been wrong.

mnch controverted; for whicli, vide Roll's Abr. 554. ) 1 Co. 51. And. 352. Hob. 98, Roll's

R 101. Godb.388. Vide Xit. Ejectment.

But the Chancery interposed, and at last carried the remedy

farther than had been admitted at common law ; for though hi

the court left the plaintifit' to his remedy at common law lor the

recovery of the mesne profits, and would not assist by their

(rf) Id. 229. decree {d) ; and though in the case of Eyre and Jadcsoiu

14 Car. 2. they refused to assess any damages for a trespass,

for that was a matter determinable at common law, and to be

ascertained by a jury, yet afterwards they began to make the

person, who was the disseisor of the mesne profits, accountant

to him who had the right. And this was first begun where

lands were settled for the payment of debts; there, such trustees,

and the heir of the debtor, were accountants to the creditors

for whom the profits were to be received; and this was very

clear and plain, because such person came in and took the

profits under the trust ; and this was settled in the case of Gilpin

Chan.Ca. and Smith, 18 & 19 Car. 2. Afterwards they came to extend

80,81. their notions; and the person that took the mesne profits by

wrong, was taken as trustee for, and accountant to, him that hatl

^21-41-5* ^^'*^ "ght; and this was settled in the great case of Coventry and

2 Chan.* R. Halt, which was in the years 33, 34 & 35 Car. 2. and was this:

259. 261. Sir 'Fkomas Thynn having treated with the Lord Keeper Coventry

[It is gene- for a marriage between his son and Catharine the dnughter of

ral y true, ^^ Lord Keeper, the said Sir Tiiomas covenanted to settle lands
that a court , . i i i r • i • i

of equity will ^^ "'^ son; but the conveyance was delective, because it wanted

not decree an the words, that he should stand seised : the son recovered the
account of lands by a decree in Chancery, notwithstanding the defect in
whJrefhe ^^^ conveyance, agahist the heir at law of Sir Thomas, the
title is niersly father, and afterwards came with his bill for the mesne profits ;
legal, or the plaintifFis out of possession. Tilly v. Bridges, Pre. Ch. 252. Norton v. Frecker,
1 Atk. 524. Saver v. Pierce, 1 Ves. 232. But from this rule must be excepted all those cases
where the plaintiff is an infant, or has been prevented from asserting his title by trust, mistake, or
fraud and concealment on the part of the defendant. Duke of Bolton i?. Deane, Pre. Ch. 516.
Bennett v. Whitehead, 2 P. Wins. 64.3, Dormer v. Fortescue, 5 Atk. 130. And in such cases
the court will direct tlie account to be taken from the time the plaintiflfs title accrued, unless
•pocial circumstaacci require that it should commence from the time of entrv, or filing the
Mil. Jbid.]

and

(B) Of the Manner of bringing Accompty 8^c, 39

and though the heir at law was entitled to the mesne profits at (a) But equity
law, because the conveyance was defective, and the first decree, will give re-
which set up the title under the settlement, had ordered no "ef "n the
account for the mesne profits ; yet the court, on this bill, carried beyond that
back the account against the heir at law for all the profits which can be
received by him; and though it was objected, there was no obtained at
agreement, nor any trust, that the heir should receive the ^^w, it the
profits for the rightful proprietor, yet the court resolved, that the°de^and
he should account from the original justice, which entitled the be uncon-
proprietor to seek an accoimt against the person who had taken scientiously
the profits of the land, which in equity and justice belonged to obsmicted;
him; and though the heir had the title in law, yet since, in such case
equity and conscience, the estate belonged to another, such heir decreed in
ought to account with him for the profits he had made of what favour of the
was his. And from this time equity began to make all persons widow s re-
account for the mesne profits they had received, to such persons Lajnst the *
as had the equitable title. But in a case where the husband sold personal re-
lands for valuable consideration, and the wife, after his death, presentative
recovered her dower against the purchaser, and brought her bill ^f fu u'^-^^
in Chancery for the mesne profits from the time of the death of 3^ account
her husband, the Lord Chancellor Cowpei' would not relieve of the mesne
her ; for he said that he could not alter the law of dower, which profits from,
gave no damages against a purchaser under the husband; and !h !| ™^u r
he saw no reason in equity to introduce a different rule, (a) the husband.

Curtis V. Curtis, 2 Bro. Chan. R. 620. The same account has been directed in favour of the
representative where the widow has died before she had established her right to dower.
Wakefield v. Child, cited in Fonblanque's Notes on Eq. Tr. p. 147. Wherever a widow-
resorts to Chancery for her dov/er, (as it seems she may now do in all cases,) the general
course of that court is to give her an account fiom the time her title accrued. The mesne
profits are there considered as (what they really are) the widow's subsistence, and not
m the nature of vindictive damages. 2 Bro. Chan. R. 620. Dormer v. Fortescue, 3 Atk,
ISO, 131.]

[Courts of equity, when resorted to for the purpose of an Fonbl. Notes
account of mesne profits, will in many cases consult the principle °" ^*1* ^'*-
of convenience ; and therefore Lord Hard'wicke held in Townsend
V. Ashy-S Atk. 386., That "though the party claiming a share in
*' the New River water-works had not established his right at
" law, yet as such right appeared to the court, he ought to have
" an account of the mesne profits ; for though shares in water-
" works are a legal estate and corporeal inheritance, yet no one
" proprietor could receive the profits himself; but the company,
" or their officers, are the common hand to receive the profits ;
" and that it would be absurd to send the plaintiffs to law ; for
*' it would be difficult to bring ejectment for a thirty-sixth part,
" and bits of land in several counties ; and to bring actions of
** trespass against the terre-tenants would be very extraordinary ;
" and therefore, in point of remedy, there could not be a
" stronger case for an account of mesne profits."

In cases of hardship, as where an heir at law is disinherited Sympson v.
on a nice construction of words, the courts deem it inequitable p ''"^'^J^'
to lend their assistance if there is no infant concerned, anil leave ^' '" ^'
the party to his remedy at law by entry and ejectment.

D i Nor

ACCOMPT.

Higgins T.
York Build-
ings Company,
sAtk. 107

Gould V. Tan-
cred, 2 Atk.
534.

Fonbl. 149.

Lockey v.
Lockey, Pre.
Ch. 518, Earl
of Newburgh

Nor will they interpose in favour of judgment creditors upon a
bill to set aside a fraudulent conveyance, and decree an account
against the debtor and owner of the estate, of rents and profits
received pendente lite from the filing of the bill ; nor in favour of
a mortgagee against a mortgagor, left in possession, for any of
the years back during that possession. In the former case the
plaintiffs have their legal remedy by elegit ; and in the latter,
■where interest is not regularly paid, the mortgagee has a legal
remedy to get possession of the estate, which, if he does not avail
himself of, it is imputable to his own laches.

But, where the mortgagee enters, and takes possession, he is
subject to an account, being in the nature of a bailiff to the
mortgagor.

The cases decreeing an account of rents and profits where the
legal tide is not previously established, proceed upon that respect,
which, in justice, is due to the interests of persons, who, by in-
fancy, fraud, 8^c. have been prevented from pursuing their legal
right ; but it must not be inferred from the extreme anxiety of
courts of equity to protect such rights, that they will, at any pe-
riod (a), or under any circumstances, act upon such indulgent
disposition ; for if an infant neglect to enter within six years alter
he comes of age, he is as much bound by the statute of limita-
tations from bringing a bill for an account o^ mesne profits, as he
v. Bickerstaffe, is from an action of account at common law ; or, if there be a
r T^R"t^T^ verdict at law against the infant's title, courts of equity will not
plaintifFhas direct an account of mesne profits, but will merely retain the
been kept out bill, for the purpose of giving the infant an opportunity to
of possession estabUsh his title at law.
by fraud,

Q.U. Whether equity will not relieve at any distance of time, as no length of time will bar
fraud? Cotterell v._ Purchase, Ca. temp. Talbot, 63. l|Where the plaintiff had been pre-
vented from recoTering in ejectment by a rule of the court of law, and by an injunction, both
of them obtained at the instance of the occupier, who ultimately failed at law and in equity,
an account was directed from the time the title accrued against executors. Pulteney v. War-
ren, 6 Ves. 73.||

Ferrers v. Fer- It is very seldom, even in the most favoured cases, that interest
temp. Talb ^^ allowed, in taking the account of rents and profits.]
2, 5. Robinson t. Gumming, 2 Atk. 409

J^^'j: ^^''•. " ?• A bailiff" cannot be charged as receiver, because if he be
understood a ** charged as bailiff" upon his account (i), he shall have allowance
servant that P^ ^^^ charges and expenses, which he is not entitled to when he
hath adrainis- is charged as a receiver : also, he is not allowed in an action
tration and brought against him as a bailiff", to plead that he was before
lamlfgoods, cl^arged as receiver.

and chattels, to make the best benefit for the owner, against whom an action of accompt doth
he for the profits which he hath raised or made, his reasonable charges and expenses de-
ducted. Co. Litt. 172. a. A receiver is one who receiveth money, and is to render an account
of It, but IS not allowed any charges or expenses but such as are agreed on by the parties ;
T? ?"r *^^® ^^ plaintiff is to declare by whose hands he received it. Co. Litt. 172. a.
If a baihff be charged as receiver it seems the best way is to plead it specially, for he cannot
take advantage of it after judgment, quod computet. 2 Lev. 126. Freem. 378. Whether a
person mjiy not in he san:c action be charged as bailiff and receiver, Quturc ; and vide 1 Roll.

Abr.

(D) In what Cases this is t fie proper Action, S^c. 41

Abr. 119. Cro. Car. 240. 3 Keb. 387. 435. In some cases in an action of account against one
as receptor denariorum, he shall have allowance of his expenses, and shall account for the
profit he received, or might reasonably receive. Co. Litt. 172. a.

be brought.

A N action oi accomptYiQs not for a thing certain ; as, if a man Bro. tit. Ac-
delivers 10/. to B. to merchandize with, he shall not have compt, 35.
account of the 10/. but of the profits, which are uncertain. rown. .

No action of acccompt lies for rent reserved on a lease. So, if ^o^l- ^br. 1 16.
a lessee of goods waste them, yet no action of accompt lies against
him.

If the bailee of goods to bail over waste them, or refuse to de- Roll. Abr. lie.
liver them, no action o? accompt lies, but an action of detinue or Owen, 86.
trove?' and conversion.

If A. hath a term for years in a rectory, and tythes being set ^ Leon. 24.
forth and severed from the nine parts, B. without any pretence
of title, carries them away and sells them, yet A. shall not have
a writ of accompt against B. for after severance the tythes im-
mediately vested in A., and the taking by B. was merely wrong-
ful, and therefore without privity.

(D) In what Cases this is the proper Action, or some ,

other may be brought. i

TF a man by obligation, acknowledges that he has received Roll. Abr. lie.

money ad proficiendum et computandum, the obligee may either Dyer, 20. 1 is.
sue the bond, or have an action o^ accompt at his election. ^^°' ^i'G44.

So, \{ A. acknowledges by deed, that he has received 100/. Roll. R. 52.
from B. to be adventured to the West Indies and thence to Eng- ^ ^u^st. 256.
land back again, and covenants to render a true account thereof
upon his return, though B. may have a writ of covenant upon
this deed, yet he may also have a writ of accompt thereupon at
his election.

Assumpsit, in which the plaintiff declared, that intending to go
beyond sea, he delivered a box full of goods to the defendant
which he promised to dispose of, and to give the plaintiff an ac-
count thereof at his return : the defendant pleaded in abatement,
that he was bailiff to the plaintiff, to merchandize the said goods ;
and that he ought to bring an action of accompt, and not an
action on the case; and upon demurrer it was adjudged, that Salk. 9. pi. 1.
here being an express promise, on which the action is founded, ve* k'"^ ^'
assumpsit will lie as well as accompt -, and that wherever one acts Carth 89.
as bailiff he promises to render an account. S. C. where it

was holden,
that the action would lie by three judges against HoH, who doubted, and who told the plaintiff,
that when it came to be tried, he would not suffer him to give all the account in evidence, or
to enter into the particulars thereof; but that he should direct his proof only as to the
damages which he had sustained for not accounting according to the promise, for he would
not travel into an account in such actions. Comberb. 149. S. C.

iC ACCOMPT.

Salk, 9. pi. 2. In assumpsit for money received ad comjmtandum, and verdict
Poulter V. fyr the plaintifT, it was moved in arrest of judgment, that this
F^TaShow. J^ction tUd not lie, but accompt'; for if a man receives money to
R. 301. a special purpose, as to account, or to merchandize, it is not to

be demanded of the party as a duty, till he has neglected or re-
fused to apply it according to the trust under which he received
it; and the declaration must shew a misapplication or a breach
of trust : but it was holden, that in this case the verdict had
aided the declaration ; for it must be intended there was proof
to the jury that the defendant refused to account, or had done
somewhat else that rendered him an absolute debtor.
Tonikins v. Iff ^e action of account is now seldom resorted to, and it is

^^jl'''^'-'"'"' held that the balance of an account, however numerous the
1 M^rsh 115 ^^^"'Sj ^^y ^6 recovered in assumpsit.^
Arnold V. Webb, 5 Taunt. 452.; sed vide Scott v. Mackintosh, 2 Camp. 238. contra.

(E) What shall be a good Bar to this Action.

RoU.Abr.i2i. T^ accompt against one as bailiff, it is a good plea that he was

never his bailiff.
Bro. 29. Roll. In accompt against a bailiff, it is a good plea that he was the
Abr. 121. plaintiff's servant to drive his plough, and keep his cattle for the
drawing of his plough, absque hoc that he was his bailiff in other
manner, because he is not accountable for this occupation.
11 Ah 193 ^' '^ ^ good plea in bar to an action of accompt^ that the
So if the plaintiff hath released to him all actions.

plaiiitifFhaJ released to him all the advantage and profit that he might have by the account.
Roll. Abr. 125.

Cro. Car. 116. go, it is a good plea in bar, that the plaintiff and defendant
Hetl. 114. submitted to the award of J". S., who awarded that the defendant

ought to be acquitted against the plaintiff.
Bro. 48. Roll. So, it is a good plea in bar, that after the receipt of the sum
Abr. 123. But of which the account is demanded, by the mediation of their
the bare ac- friends, it was agreed between them, that the defendant should
an'obligation make an obligation of 100/. for the 100/. received, and the profit
would not be thence to arise, which obligation of 100/. he did make and
sufficient. Vide deliver accordingly to the plaintiff; for the acceptance of the
1 R l^t°"io3 obligation destroys the duty, and the sum in demand is thereby

as strongly released as by a release of all actions.
Roll. Abr. 123, It is no good plea in bar to the action, that the defendant hath
124. So, if the made payment of the money which he hath received to account
1 ^ds that the ^^^^'j or that he hath made satisfaction for the same,
plaintiff" has given him an acquittance for the sum received. Bro. tit. Account, 59. For these
pleas, being matters which shew that he was once accountable, are only to be made use of
before the auditors. Vide Dyer, 22. 145. 6 Co. Ferrer's case. 4 Leon. 61. Stile, 55o. 410.

49 E. 3. to. [Nonage is a good plea in bar of this action. So is pLaie com-

4iE. 3. 5. 9. putavtt, and an account before the plaintiff would be sufficient.
Lutw. 58. " ■f/<'"^ coviputavit and a release are the only pleas which admit
3 Wils. 1 13, the plaintiff to be accountable that can be pleaded in bar to the
action ; and these are allowed, because they are total extinctions
of the right of action. This being a matter for the court to

judge

(F) Of tJie Auditors, and what shall he a good Discharge, ^x. 43

judge of, they must be pleaded specially, and cannot be given in
evidence on ne unqjie receivour.

If the plaintiff charge the defendant as receiver for a particular Southcot v.
time, he must ansv^rer that time precisely. . Rlvni' 57

The defendant may plead the statute of limitations in this ac- St.21 Jac. 1.
tion; but, if the plaintiff reply that it was an account between c. I6. §5. Firf.
merchants, the plea will not avail him. Ch 518

If the defendant plead that he has accounted before R. and W., Bui. Ni. Pri.
evidence that he accounted before R. only will be sufficient, for 127. C4th edit.)
the accounting is the substance.] ,

(F) Of the Auditors, and what shall be a good Dis-
charge before them.

TN an action of accompt there are two judgments; the first is Mod. 42.

quod computet, after which the court assigns auditors, usually p ^"^' '^^'
two of the officers of the court, who are armed with authority to l^J^ 49
convene the parties before them de die in diem, at any day or Rast. 14,
place that they shall appoint, till the account is determined. The Lutw. 50. Of
time by which the account is to be settled, is prefixed by the auditors as-
court; but, if the account be of a long and confused nature, the parses them-
court, on application, will enlarge the time, [a) If either of the selves, by vir-
parties think the auditors do him injustice, he may apply to the tue of the
court; and if rhe defendant denies any article, or demurs to any statute vv. 2.
demand, it is to be tried and determined in court. 2 Inst. sso.

Brownl. 24. [Where the auditors are not assigned by the court, the remedy for not making
such allowances to the accountant as they ought to do, is bj' writ o{ ex parte talis^ which is a
commission to the treasurer and barons of the Exchequer to take the account. F. N. B. 129.]
JlTwo principal officers of the Court of King's Bench were on motion appointed auditors after
a judgment quod coviputet. Smith v. Smith, 2 Cliitt. R. 10. Archer v. Pritchard, 3 Dow. &
Ry. 596. The rule to appoint auditors is absolute in the first instance, /ftjrf.ll [2 Inst. 38 r.
(a) All articles of account, though incurred since the writ, shall be included, and the whole
brought down to the time when the auditors make an end of their account ; per Ld. Mansfield
2 Burr. 1086.]

I Whatever may be pleaded to the action shall never be allowed Leon. 219.
of as a good discharge before the auditors ; therefore, where in {^^^"s. 113.
accompt the defendant pleaded never his receiver, &c. and this ^^ z,yo\d trou-
being found against him, he was adjudged to account; and be- ble and charge
fore the auditors he pleaded a submission of all debts, accounts, to the parties.
^c. to J. S., who awarded that the defendant should pay 10/. j^^i^^^Jp^^'
only in discharge of all debts, accounts, ^c. which he paid ac- Hg^i j {^ '
cordingly : this was holden no good plea ; for this award, made S. C]
before the action brought, ought to have been pleaded in bar
thereof; which being omitted, he hath lost the advantage thereof,
and shall not plead it before auditors.

[Nothing can be pleaded before auditors contrary to what has Godfrey v.
been pleaded to the action, and been found by verdict: where, Saunders,
therefore, a defendant charged as surviving bailifi'of goods de- ^ Wils. 114.
livered to him and his co-bailifi'to be merchandised, and to ren-
der an account, had gone to issue upon this fact, namely, whether

upon

44 ACCOMPT.

upon his delivering over the goods to the deceased bailiff, all his
(the defendant's) concern in the trust, care, and management
thereof ceased and was at an end; which issue was found against
him : it was holden, that he could not plead afterwards before
auditors that he delivered the goods over to the co-bailiff with
the consent of the plaintiff; for this matter might have been
given in evidence upon the former issue ; and the consequence
of admitting it to have been put in issue before auditors would
have been, either two verdicts the same way, which would have
been nugatory, or two contradictory verdicts, which would have
entangled the court so much that they would not have known
what judgment to give.
41 E. 3. 25. The defendant may plead payment to the plaintiff without

shewing an acquittance.]
Roll. Abr. 124. It is a good discharge before auditors, for a factor to say, that
Bro. ut. Ac- jj^ ^ tempest, because the ship was surcharged, the goods were

cast over-board into the sea.
^, J. So, it is a good discharge before auditors, that he was robbed

(a) Or that he ^f the goods without his default or negligence. («)
put them in a warehouse from whence they were taken by an enemy. Stra. 680.
Roll. Abr. 124. ^' '^ ^ good discharge before auditors in accompt as a receiver
(6) This must of 10/. if he tenders tlie 10/. {h) and swears that after the time
be understood that the money was delivered him, he found that he durst not

ofonewhore- X^^xy. for fear of loss ; for he is not obliged to run any hazard
ceives money i- ir " ^

to trade and himself.

merchandize therewith ; for no other receiver is in any case obliged to buy or sell. Roll.
Abr. 124. Qiusre, Whether such oath be necessary; and vide 2 Mod. 101. 1 Bulst. 104.
Eq. Ca. Abr. 369. 2 Vern. 638. 3 Wnis. 185. 187. 279. 10 Mod. 144. 12 Mod. 514, 602.
[It seems that the defendant may, in some cases, purge himself by his own oath. The statute
of 4 Ann. c. 16. $ 27. gives the auditors a power in the cases there providedfor, of administer-
ing an oath, and examining the parties. Fitz. Abr. Accompt, p. 40. Bro. Accompt, p. 66.
2 Mod. 101.]

^oll. Abr. 125. If a bailiff of a manor receives the rents and profits of the
tenants, and retains them two or three years, yet in a writ of
accompt he is not to account for the profits thence arising in the
mean time, for he had not any warrant to merchandize with the
money, or to gain or lose thereby,
a Mod. 100. If in accompt the defendant pleads before auditors, that the

and the above goods for which he is to account were bona peritura ; and, not-
(c) Nor pawn, withstanding his care in keeping them, were worse, and that they
a Stra. 1187. remained in his hands for want of buyers, and were in danger
(<f) Factors of growing worse, and that therefore he sold them upon credit
now have fo a man beyond sea; this is no goo<l plea, for a factor cannot
commission. ^^' even bona peritura upon credit (c), without a particular com-
mission so to do. (rf)
Bui. Ni. Pri. [The defendant cannot in an action of account pay money into

court, as he may in an assumpsit.
1 Lutw. 63. If the plea oi' plane compuiavit be found against the defendant,

he shall account before the auditors for the whole money he is .
charged with, for this plea admits the receipt of the whole.

' ' ^ (G) Of

ACCORD AND SATISFACTION. 45

(G) Of the Judgment, and the subsequent Proceedings.

TN this action, as is above mentioned, there are two judgments; i Brownl.24.

the first is quod computet; and afterwards, when tlie account Cm. Eliz. 806.
is finished, the second judgment is, that the defendant pay the ^ Black. Cora,
plaintiff' so much as he is found in arrear. (a) Upon the first (a) \vhere
judgment a capias ad computandum Hes, and if a non est inveritus final jiid<>;ment
be returned upon it, an exigent issues. It is usual to bail the ^^^"^ entered in
defendant, if he be taken on the capias^ though, by the rigour of ^["^ "•"'^'^ '""
the law, he is to account in prison. c'ourt'set it

aside upon motion, as irregular. Hughes v. Burgess, Jff. /?. H. 594. Andr. 19. S. C.

If the defendant make default after the interlocutory judgment, Cro. Eliz. 806.
at the day assigned by the auditors, final judgment shall be s Wils. ii7.
entered for the sum demanded by the plaintiff. So, if there be ^ • ^'\" '''^'
judgment on demurrer to an insufficient plea before the auditors, ^i E. 3. 87. *

2R. A. 131. p. 4.

It seems to be questionable, whether, in all cases, damages are Jenk. 288.

recoverable in account ; but it is clear that if the defendant resists * y^ ' "'"'

the plaintiff^s claim by pleading, or an increase is received by j Leo. 502.

a receiver, ad merchandizandum^ there shall be judgment for 2Leo.11 8.

damages. 3 Wils. 117.

It hath been holden, that the first judgment is not such as can 21 E..5. 9. Z2.
be revived by scire facias upon the death of the plaintiff, before ^i- ^.^s- li-
the account taken (6), or as a writ of error can be brought upon ; u^ ^'^ q-"
and yet the plaintiff cannot be nonsuited after it.

After final judgment, the plaintiff' may pray that the defendant's Lutw. 51.
body be taken in execution ; or he may pray an elegit, if he
refuses the body. See the writ to the gaoler to receive the
defendant after final judgment. Reg. 137.]

ACCORD AND SATISFACTION.

A CCORD is an agreement between two persons at least to give 5 E. 4. 7.

and accept something in satisfaction of a trespass, Sfc. done j^^j]^"^'^*^ j^g
by one to the other. This agreement, when executed, may be
pleaded in bar to an action for the trespass; for in all personal
injuries, the law gives damages as an equivalent ; and when the
party accepts of an equivalent, there is no injury or cause of com-
plaint, and therefore present satisfaction is a good plea : but, if
the wrong-doer only promise a future satisfaction, the injury con-
tinues till satisfaction is actually made, and, consequently, there
is a cause of complaint in being; and if the trespass were barred
by this plea, the plaintiff could have no remedy for the future
satisfaction, for that supposes the injury to have continuance..

(A) What

4§

ACCORD AND SATISFACTION.

(A) What shall be deemed a good Accord and Satis-

faction.

(B) To what Actions may Accord and Satisfaction be

pleaded.

(A) What shall

be deemed a
Satisfaction.

good Accord and

9E. 4. 19.

Roll.Abr. 128.
[(a) Vide
Perk. $ 749.
Dy. 75, In
the case of

A N accord must appear to be advantageous to the party (a),

otherwise it can be no satisfaction ; therefore in an action of

trespass for taking the })laintifF's cattle, it is no good plea to say,

that there was an accord that the plaintiff' should have his cattle

again ; for this is not any satisfaction.

Cumber V. Wane, Stra. 4'J6. it was said by the court, that the satisfaction must appear to them
to be a reasonable one; at least, that the contrary must not a[)pear ; that consequently, pay-
ment of a less suin could never be admitted as an accord and satisfaction for a greater.] JlSo
Pinnel's case, 5 Co. 117.; and Fitch v. Sutton, 5 East, 2.'5l.|] But, if it was to drive
them to a certain place, so that it would be a charge to him to do it, this would make it a
good accord. 2 Roll. R. 96. In covenant against the executor of tenant for life, Sec. he
pleads an acccord that he should quietly depart, and leave the possession, &c. and holden
good ; though after the death of tenant for life he had no interest, but a licence in law only
to carry away his goods. Yelv. 124. per three judges against one.

Pinnel's case, ||Though the acceptance of a less sum is not alone a good ac-
1 17 C b cord and satisfaction of a greater, since there is no consideration
for giving up the rest of the debt, (it makes no difference that there
is a promise by the debtor to pay the residue when able) yet
certain other additional advantages moving to the creditor, have
been held to render the agreement on his part to accept the less
sum bindinu.

V. Wane,
Stra. 426.
Fitch V. Sut-
ton, 5 East,
231.; and see
2 Bam. & C.
477.

Steinman v.
Magnus,
1 1 East, 390

Thus, where the debtor entered into an agreement (not sealed)
with his creditors, whereby they agreed to receive 20L per cent,
in satisfaction of their several demands, and released the re-
Lewis V.Jones, mainder in consideration that half the sum should be seaired by the
acceptances of a certain other person also a creditor, which
security was accordingly given and paid when due ; it was held
that such agreement was binding on the plaintiff*, one of the
creditors. Here the security given by the surety for half the com-
position was a beneficial consideration moving to the plaintiff" and
all the creditors, and as the surety was only induced to give it
on the faith of the defendant being discharged from the remainder
of the debts, the court considered it a fraud upon the surety, as
well as on the other creditors, that the plaintiff' should sue for the
residue of the debt.

So, although a mere agreement between the debtor and his
creditors that they will accept a composition in satisfaction of
their respective debts, is not a good accord and satisfaction
pleadable to an action brought by one of the creditors, to recover

his

4 Barn. & C
513.; and see
Boothbay v.
Sowden,
3 Camp. 1 74.
Cork v. Saun-
ders, 1 Barn.
& A. 46.

Heathcote v.
Cruickshanks,
2 Term R. 24.
and see 2 H.
Black. 317.

<^<?

.Jt >v " AA*****^***-^"

(A) What shall be deemed a good Accord and Satisfaction. 47

his whole demand, yet it seems that if the debt be ascertained by 2 Term R. 24.

the agreement and a fund provided, and all the creditors are ^"ll^^^

bound to forbear, the agreement constitutes a good plea. So, "^ '""^'
also, (it seems) if the debtor assign over all his effects to a trustee
for equal distribution among his creditors, for this is a good con-
sideration for the promise of each not to sue.

And if all the creditors verbally agree to accept a composition, Bradley v.

partly to be secured by acceptances of a third party, and partly Gregory,

by the debtor's own notes, and to execute a deed with a clause ^ ^^^'"p. 383.

of release, and if all the creditors but one sign the deed, and the q"^ ^^^^ ^^'

acceptances and notes are duly tendered to such one creditor, q i erm R,

and he then refuses to receive the bills or to execute the deed, 263.
it has been held he cannot sue the debtor for his original debt.
Lord Elleiiboroiigh held that the agreement was executed by the
signing of the other creditors, and the tender of the bills, and
that it was a good accord and satisfaction.

It has been held a good plea in assumpsit for goods sold, cSr. Kearslake

that the defendant, being payee of a promissory note, indorsed it ^' Morgan,
to the plaintiff, "for and on account of" the said debt. But if ^^^ Thomas

the demand exceeds the amount of the note, it can only be v. Heathorn,

pleaded as to so much of the demand as is covered by the amount 2 Barn. & C.

of the note. II '*^^-

An accord that each of the parties should be quit of actions

against the other, is not good («) ; because it is not any satis- g°, ' 045^^^'

faction.. Lut%7.
IJJames v. David, 5 Term R. M.jj (a) But an accord that each should give the other a quart
of wine in satisfaction of action, is good. Roll. Abr. 128.

In an action upon the statute of 5 Rich. 2. st. 1. c. 8. if the 9 E. 4. 19.

defendant saith, that after the entry an accord vans made between Roll. Abr. 128.

them, that the plaintiff should re-enter into the land, and that ^94'!'^^^''^*

the defendant should deliver the evidences of the plaintiff to the citeA Dyer,

plaintiff, this is not any bar of the action ; for the delivery of the o56. S. C.

plaintiff's own evidences can be no satisfaction of the tortious ^i^ed, {b) But,

entry, (b) ''[ '?« •»'^\^'^

•^ ^ ' title to the

evidence, it would be a good bar. Roll. Abr. 128. That the delivery of the deed by the

feoffee to cestui que use is a good accord, because it belongs to the feoffee. Cro. Eliz. 357.

An accord that the defendant should endeavour to make up and Roll. Abr. 128.
adjust differences between the plaintiff and J. 5., thai he did
endeavour, and at his own costs make up such differences, is a
good plea.

In trespass for trampling his grass, the defendant pleads that Bro. Trcs()ass,
he was amerced in the court-baron of the plaintiff' for the same <56.
trespass, which was affeered to two shillings, for which he hath
agreed with the plaintiff; and holden a good plea by the accept-
ance thereof, though the amercement in the court-baron was
extortion.

In an action upon the case for scandalous words, the defendant Roll. Abr. 128,
pleads, that after the words spoken, the plaintiff sued the de- ^^9.
fendant in the military court before the lord marshal ; where it
was ordered by that court, with the consent of the plaintiff and
defendant, in discliarge of this suit, and all other differences

between

ACCORD AND SATISFACTION.

cause it ap'
peared that
the first obli-
gation was
forfeited, and
then the pe-

(a) Where the between them, that the defendant should make a submission in

defendant writing, in a place appointed, and before certain persons, Si-c. and

Ft was^ agreed ♦'v^'"'* ^'^'^^ he did so accordingly, t^c. and on demurrer it was

the defendant holden no good plea : for it being a point of honour only (a),

should confess could be no discharge of the damages.

to the phiintiff

he had done him wrong, and should ask forgiveness on his knees, whether this was a sufficient

consideration or satisfaction. 2 Roll. Rep. 96. dubitattir. Vide Stile, 245. Salk. 71. pi. 5. ijnd

head of Arbitrament and Award.

s Lev. 55, 56. Debt upon an obligation dated the twenty-third of March,

Lobly and 24, Car. 2. upon condition to pay 10/., the defendant pleaded an
Gildart. Hob. » 1 1 c- ^ -i ,., V^ ^ i i • 11

68. Lovelace occo7a the last or Aprils 31 Car. 2. whereby it was agreed that

V. Cocket. A. the defendant should give the plaintiff a new security for this

new obligation debt, and for another due to him by obligation likewise ; and be

was given; and ^einff the executor of the obligor, and the person with whom this

holden no sa- »- , <? ' r

tisfaction be- o.ccord was made, gave security, pursuant to tlie accord, by a

bill sealed by himself; the plaintiff demurred ; and by the whole
court judgment was given for the plaintiff; for one obligation
given in satisfaction for another is no discharge, whether
grounded upon an accord or not; for the concord does not
mend the matter; and yet here the new obligation binds him de
nalty was the bonis jn-opriis, whereas the first obligation bound him only dc
therVfo'rethe ^onis lestatoris,

second being for less, could not be a satisfaction for a greater sum. Lutw. 466. Vide 5 Co.
117. Cro. Eliz. 727. 4 Mod. 88. 7 Mod. 17. [One simple contract debt cannot be pleaded
in bar of another. Roades v. Barnes, Burr. 9. Black. R. 65. If a debt is on deed or obliga-
tion without condition, the accord and satisfaction must be by deed, and so pleaded.] USee
7 East, 148. II [If there appears a condition for payraentof money, perhaps, it may be pleaded
without deed in satisfaction of the money or condition. 2 Wils. 86.]

Preston v. ^^ release of an equity of redemption is no satisfaction, because

Christmas, of no value in the eye of the law."]

2 Wils. 86. Qu. of this, and whether courts of law do not look at mortgages now with the
same eyes as the rest of the world ?

Scholey v. || Xhe satisfaction must be to the party having the legal interest

7 East 148 ^^ ^^^ debt, and must be so pleaded. Thus, where the sheriff
declared against defendant on a bail-bond, and the defendant
pleaded that the action was brought by the sheriff, as trustee for
the sheriff^s officer, and that the defendant paid the officer the
debt and costs in the action after the return day, but before the
sheriff was ruled to return the writ, and the officer accepted the
money in full satisfaction and discharge of the bail-bond and fees,
and that if any damage were afterwards incurred for default of
defendant's appearance, it was occasioned by the officer not pay-
ing over the debt and costs to the plaintiff in the action, who
would have accepted the same, Sj-c, the plea was held bad on
demurrer; for it did not appear that the officer had any legal or
equitable interest (even supposing the latter would have sufficed)
in the bond, at the time of the supposed satisfaction recovered by
such officer. II

If an accord be to do two things, and the defendant do one and
w.^ ...uo "°^ ^'^^ other, this is no bar of the action, because the plaintiff

executed, vide ^^^^ "^t any remedy for that which is not performed.

tupra and Plow. 5. 11. b. 9 Co. 79. b. 2 Jones, 158. 168. 2 Keb. 332. Salk. 76. T. Raym.

450. where

Roll. Abr. 129
That the ac-
cord must be

(A) What shall be deemed a good Accord and SatkfcKtioiu 49

450. where it is said, that an accord may be pleaded without execution, as well as an afWtra-
inent ; but quare, and see Allen v. Harris, Ld. Raym. 122. Lutw. 1537. S. C. James v.
David, 5 Term R. if. J2. 141.] ||Lynn v. Bruce, 2 H. Bl. 317. Bradley v. Gregory, 2 Camp.
383. from which cases it is clear the accord must be executed. The contrary doctrine would
" overthrow all the books," according to the language of the court in Ld. Raym. 122.j|

But, if an accoid be that the defendant shall do a certain thing 6 H. 7. ii. b.
at a day to come, in satisfaction of an action; if he perform it at ^° •^^•^^^'
tiie day, this is a good bar of the action, thongh it was executory ^ss.W
at the time of the accord made, inasmuch as he hath accepted it
in satisfaction.

If in trespass the defendant pleads a concord between himself Raym. 203.
and the plaintiff, that he should pay the plaintiff Si. in hand, ^^^^ ^"/^
and should undertake to pay the plaintiff's attorney's bill, and 2 Keb 690*^
avers that he had paid 31. and was always ready to pay the at- s. C-
ton>ey's bill, but he never shewed him any ; this is no good
plea, because the accord is not shewn to be fully executed.

f So, performance of part, and tender of performance of the Lewis v. Shep-
resid Lie, is no good plea. Jones ^6^^'

Where to debt upon bond the defendant pleaded payment of Balston v.
part before the day on which the bond became due, and a pro- Baxter, Cro.
viise to pay the rent at a day to come, to which the obligee had , \ aH^*
agreed ; the court held it no bar, it being executory. For the Harris, Ld.'
same reason a plea to an action of trover that the plaintiff Raym. 122.
agreed to discharge the defendant of the trover in consideration ^"^* ^^*'^-
■Tiis undertaking to pay a sum of money, was holden bad (a) ,^. james v
So, a plea that the plaintiff and defendant agreed to settle all David, sTerm
matters in dispute, and to bind themselves in a penalty not to R. Hi.
sue each other, [b)

So, where a defendant pleaded that his several creditors, one Heathcote v.
of whom was the plaintiff, had come to an agreement to accept Crookshauks,
a composition in satisfaction of their respective debts, to be paid np "^fi \f^'
within a reasonable time, which he tendered and was ready to caggs 0^ this
pay ; it was holden that this was no plea to the action for the subject see
whole demand ; for the agreement is unexecuted, and the pro- '*'^^*^- P- ^^-ll
mise a mere nudum pactum for want of a consideration. But
per Buller J. — If the defendant had assigned over all his effects
to a trustee in order to make an equal distribution among all his
creditors, and they had been bound by the agreement to forbear,
it might have been a good plea.]

If in an indebitatus assumpsit y Sfc. the defendant pleads an Raym. 450.
agreement between the plaintiff and defendant, and J". aS. the son 2 Jones, 158.
of the defendant, that the plaintiff should deliver to the defend- ^^^ ^^^^
ant certain clothes, which the plaintiff then had in his custody ; Barber,
and that the plaintiff should accept the said son her debtor for 91.
to be paid so soon as he received certain pay from the king, due
to him as lieutenant of a certain ship, hi full satisfaction, S^c. and
that after, so soon as the son received his said pay, he was ready
and offered to pay, <§r. and that he yet is ready ; this is no good
plea, for it doth not appear that there was any good consider- (r) Vide
ation why the son should pay, but a bare agreement, without con- 2 Jones, I68.
sideration (c) ; and admit the promise good, if not in writing, by ^ *'*• ,

Vol. I. E 29 Car. '^^'■'''^'-

so ACCORD AND SATISFACTION.

29 Car. 2. c. 3. no action lies thereupon ; and therefore it
ought to have been shewn that it was in writing ; for when such
agreement is pleaded in bar, it must appear to the court, that
an action will lie thereupon ; for the defendant shall not take
away the j)lainti{I''s present action, and not give him another
' upon agreement pleaded.

5 Lev. 189. If in covenant to permit the plaintiff to receive 100/. per ann.

Russell and j.^^^^^ jj^^ Jefendant pleads a concord between the plaintiff and
"*^ ' defendant, that each of them should deliver his part of the in-

denture into the hands of a third person, to be cancelled, and
that each of them should be discharged of all actions upon the
indenture, and avers that he had delivered his part to the third
person ; yet this is no good plea, because it does not appear
to be executed on both parts. Sed, qu. the default being the
plaintiffs.

Per Heath J. || Where a man by deed acknowledges himself to be satisfied,

* Taunt. 145. jj. jg ^ good bar without receiving any thing. ||

(B) To what Actions may Accord with Satisfaction

be pleaded.

4 Co. 1. A ^ accord with satisfaction is no good plea to an action

9 Co. 79. b. •**■ j-eal (a) ; for a right or title to a freehold cannot be barred
detinue.'for ^V ^"7 collateral satisfaction.

charters concerning a freehold and inheritance, an accord is a good plea. 7 E.4.33. 9 Co. 78.
So, in waste against a lessee for years, though in the tenet, an accord is a good plea, because
a chattel only is to be recovered. N. Bendl. 35. Mo. 6. 9 Co. 78. But 6 Co. 44. contr.
So, in ravishment de gard, and quare ejecit infra termimim. 9 Co. 78. An accord with satis-
faction is a good plea in an ejectione firmce ; for an ejectment includes a trespass, and they
are so interwoven that they cannot be severed ; and in all actions which suppose a wrong
vi et armis, where a capias and exigent lay at common law, there an accord is a good plea.
9 Co. 77. Brownl. 134. S. C. 2 Brownl. 128. S. C Godb. 149. ||It seems that satisfac-
tion by one tort-feasor discharges the others, 3 Taunt. 1 1 7.|| In an appeal of mat/hem an
accord with satisfaction is a good plea; notwithstanding the writ be felonice. 6 Co. 44.
9 Co. 78. So, in attaint, 13 E. 4. 1. 6 Co. 44. Cro. 357. Dyer, 75. If an accord be a
good plea in a qiuire impedit, — qiuere ; and vide 1 1 H. 7. 13. b. 6 Co. 44. a. 2 Brownl. 128,
139. Brownl. 124.

Q ^, When a duty in certain accrues by the deed tempore coitfec-

Lutw. 358. tionis scriptif as by covenant, bill, or obligation, to pay a certain
S. P. Cro. Jac. sum of money ; this certain duty takes its essence originally
^^*n*R* ^"^ °"'y ^y writing, and therefore ought to be avoided by
187.° IJSee niatter of as high a nature, though the duty be merely in the
Sch'oley v. personalty.
Meams, 7 East, i48.||

Kaye v. Wag- ||And therefore accord and satisfaction, made beforehvesich of
423"' Lowe*' ^ covenant under se'^f, cannot be pleaded in bar of an action
T. E<"nnton, on the covenant. ||
f Price, 604.; and see Drake v. Mitchell, 3 East, 251.

AH "-9^^?: ^"'' ^^ ^^ covenant against an assignee a breach is assigned,

Jac. 304. Co. *" "°^ repairing the house, the defendant may plead an accord
Entr. 117. between himself and the plaintiff, and execution thereof, m
Yeiv. 185". satisfactiotie et exoneratioiie reparationum i^rad.} for no certain

duty

duty accrued by the deed, but the action is founded upon a tort Noy, i lo.

or default subsequent, together with the deed, and damaojes only ^Ji?' ^^^' ^°P;
* t ] I • u • *i, u Wing.Max.64.

to be recovered, which are m the personalty. 9 Co? 79, b.

An accord with satisfaction generally is a good plea in all g q^ ^^
actions where damages only are to be recovered. Dyer, 75.

II To a scire facias on a bond to the crown a plea of payment Rex v. Ellis,
after the day, and before the writ issued, and acceptance by the 1 Price R.
crown in satisfaction, is not sufficient. |j ^^'

^HE best and safest way to plead an accord is to plead it by 9 Co. so.

way of satisfaction^ and not by way of accord ; for if it is Vide Roll,
pleaded by way o^ accord, a precise execution thereof, in every ^^''- ^^^*
part, must be pleaded ; and if there be a failure in any part, the 241 gtra 57J
plea is insufficient ; but if it is pleaded by way of satisfaction, the
defendant need plead no more, but that he paid the plaintiff 105.
in full satisfaction for the action, which he received.

If in covenant, by the heir of the reversioner against the exe- Yelv. 124,
cutor of tenant for life, for not repairing, S^x. the defendant ^^^* ^'
pleads that the testator died 19th March, and that the 2'id March f^j.^ ^^^
concordat, et agreat. fuit between the plaintiff and defendant, CutclifF;
that the defendant should quietly depart and leave the posses- adjudged by
sion to the plaintiff, and that i7i consider atione inde the plaintiff j^^^J^^'^^" ^"'1
did agree to discharge him of the breach i?i 7ion reparando, and j^ynnalns said
shews that the 25th March he did depart, 4"^. this is no good plea, the time being
because the concord is uncertain as to the time of his departure ; indefinite, the
and though he shews a departure within five days, yet he cannot ^^w*^!^'^\
help the original insufficiency of the concord, which is the found- i,ggjj imme-
ation of all. diatelv. Noy,

110. S.C. cited.

In an assumpsit for wares sold and delivered, the defendant Young v.
pleaded that he gave and delivered unto the plaintiff .a beaver p .v*
hat in satisfaction and discharge, 8^c. and that the plaintiff 5 y[Q^^ 86.'
accepted the said hat in full satisfaction and discharge of the S. C.
promises, 8^c. The plaintiff replied j9ro/cs/aw^o that the defend- 2 Salk.627.
ant never gave him any such hat in satisfaction and discharge of P . ^p ,
the said promises, pro placito dicit, that he never accepted a s.C.
beaver hat in satisfaction and discharge, Sfc. On demurrer it
was insisted first, that the issue ought to be upon the giving in
satisfaction, and not upon the receiving in satisfaction, because
every gift or payment must be directed by him who gives or
pays, and not by him who receives it [a) ; but the Court held it («) Stra. 23.
well enough, and that the whole matter concerning the pay- ^'^'**
ment, as well as the acceptance in satisfaction, would be tried
upon this issue ; as to the objection of its being pleaded to be
given in satisfaction and discharge of the promises, S,'c. when it
should be pleaded in satisfaction of the money mentioned in the
promises, and not of the very promises, the court held it of no
weight.

E 2 [It

ACTIONS IN GENERAL.

Hawksliaw
V. Rawlings,
Stra. 23.
Paine v.
Masters,
Jbid. 573.
Francis v.
Oywell,
5 iJarn. 6i A.
886.

Hopkinson v.
Tahourdin,
S Chitt. R.
303. ; and see
id. 324.

1 Ld. Raym.
666. 4 Esp.
Ca. 181.

[It liath been since settled that this is the proper method of
pleading : for there are two requisites to a discharge, namely,
payment, and acceptance ; and a traverse of the acceptance is an
argumentative denial of the payment.]

II Where the plaintiff declared for tythes bargained and sold,
and the defendant pleaded that before the exhibiting of the
plaintiff's bill the defendant paid, and the plaintiff accepted,
a sum of money in discharge and satisfaction of the promises in
the declaration, and the plaintiff replied a latitat sued out before
such payment : on demurrer judgment was given against the
plea; because it appeared by the replication that the plaintiff
had sustained damages and costs by reason of the nonperform-
ance of the promises, and the plea did not allege the payment
to have been in discharge of such damages and costs.

Where in assumpsit on several promises the defendant pleaded
accord and satisfaction of the cause of action, the plea was held
bad on special demurrer, since it did not go to the whole declar-
ation.

Accord and satisfaction may be given in evidence on the
general issue, and it is not very frequently pleaded. l|

ACTIONS IN GENERAL.

nPHE design of entering into society being the protection of

our persons and security of our property, men in civil

society have a right, and indeed are obliged to apply to the

{a) Actio nihil public for redress when they are injured ; for were they allowed

• " ,!o*^5"'"" ^° ^^ their own carvers, or to make reprisals, which they might

quendi in ^^ i'^ the state of nature, such permission would introduce all

that inconvenience which the state of nature did endure, and

which government was formed to prevent : hence, therefore,

they are obliged to submit to the public the measure of their

damages, and to have recourse to the law and the courts of

justice, which are appointed to give them redress and ease in

their affairs ; and this application is what we call bringing an

action, (a)

recovery of, or restitution to something, Co. Lit. 289. and differs from a writ of error , |
which is no action, but only a commission to the judges to examine the record, Sfc. \
Jenk. 25. 2 Inst. 40. Yelv. 209. Yet, if by writ of error the plaintiff therein may recover,
or be restored to, any thing, it may be released by the name of an action. Co. Lit. 288. b.
V'ule for this 2R0II. Abr. 405. The suit till judgment is properly called an action, but not
after; and therefore a release of all actions is regularly no bar of an execution. Co. Lit. 289. a.
Roll. Abr. 291.

Under

judicio quod
sibi debetur.
Co. Lit. 285.
or a legal
demand of
one's right.
Co. Lit. 285.
a Inst. 40.
It implies a

(A) Of tJie different Kinds of Actions. 18

Under this head we shall briefly take notice,

(A) Of the different Kinds of Actions.

(B) In what Cases an Action will lie, and for whom,

and against whom.

same Action.

(A) Of the different Kinds of Actions.
A CTIONS are divided into criminal and civil. Co. Lit, 284w

2 Inst. 40.

Criminal are either to have judgment of death, as appeals of 2 Wooddes.
death, robbery, 8^c.\ or only to have judgment of damages to ^s'^*
the party, fine to the king and imprisonment, as appeals of
mayhem, &c.

Civil actions are again divided into real, personal, and mixed. Co. Lit. 284.

2 Inst, 40.

And here it may be proper to enquire a little into the nature
of those real actions which were formerly in use, and how they
came to be discontinued.

Actions real, or relating unto lands, are either droihiral, that [This is not
is, of the right of the ancestor ; or possessory, which complain the true dis.

of the violation of a right of which the parties themselves were tinction be-
^ ° tween droi-

possessed. turaUnd

possessory actions. Whether the action be droitural or possessory depends not upon whether
it complain of an injury to the demandant himself or to his ancestor, but, whether it seek to
recover the property or the possession. If the former, the action is droitural ; if the latter
it is possessory. Finch has stated this correctly. " Real actions," says he, " where a free-
*' hold shall be recovered, are possessory., or in the right. Possessory, which are to recover
" a possession, as all assizes, writs of ayel, besayel, and cosinage. In the right, which
'* are to recover a possession mixed with the right. And both these may either be of a posses-
" sion or right in himself, or descended from his ancestors, which we call ancestral. Real
" actions in the right, are either founded on the right, or for the mere rigiit." Finch's Law,
257, 258. Note — The part referred to in the first Institute in support of the doctrine of the
text, vix. 1 Inst. 164. is not at all referable to it, nor is the editor aware, that it is warranted
by any passage in that book,] ||See Black, Com. b. 3. c. 10.|1

ITie law always distinguished between a right of entry and a Booth, 99.
naked right to the land itself; and therefore there were different ^o- Ent. 182.
remedies. To recover the naked right, the law gave only a writ * * '
of right; and in this action, the defendant at his election might
put himself upon his country or wage battle. But, when the
disseisee had a right of entry, it was presumed that the disseisin
was fresh and recent ; and therefore the trial was coram paribus
airtis. But, if the disseisee did not come till the heir was
seated in the possession, and had paid relief to the lord, then the
entry of the disseisee was taken away, and his title became
doubtful ; and then they appealed to Providence in such deci-
sions ; and if any freemen would, with his own body, defend the

E 3 ' title

S4>

ACTIONS IN GENERAL.

Booth, 177.

179.

||See Roscoe

on Ileal Ac-

tions.ll

Booth, 175.
S Inst. 289.

F.N. B. 191.

Booth, 175.
e Inst. 153.
B Black. Com.
C. 10. 181.

F.N.B.191.

221.

Booth, 175,
176. 200.
3 Black. Com.
185.

Glanv. c. 7.

§17.

Fleta, 214,

215.

Vide Assize.

So the writ of
jQuod ei dcfor-
c£?af which was
given by a sta-
tute passed in

F. N. B. 220.
Vide head of
Ejectment,
3 Black. Com,
«. 11. SCO.

title of the possessor, tlie demandant was obliged to find a cham-
pion to enter the lists with him.

But to recover the right of possession, the ancient way was
by writ of entry. Where the process was by summons grand
cape before appearance, and petit cape afterwards, as in the writ
of right, and the general issue was disseisivit vel non disseisivit;
and this issue was tried by a jury, because when the disseisin was
fresh, they did not put it upon the hazard of a battle, as they
did in those cases where the long possession had made the right
doubtful.

But in the writ of entry they recovered no'damages ; for that
such writ only demanded the freehold, and was not mixed with
the personalty ; and therefore to recover the profits which are
merely personal, they had an action of trespass, which was the
proper remedy for the damages sustained,

There were anciently only three sorts of writs o^ entry ; one was
against the disseisor himself; the other was against his feoffee,
which was called the 'writ of entry in the per; the third was after
a second alienation, which was called a *writ of entry in the pei'
and cui; but the statute of Marlb. cap. 30. gave a writ of entry
in the post, which did not lie at common law against an alienee
at a third hand.

And as a man might have brought such writ of entiy of his
own disseisin, so' he might have brought it for the disseisin of his
father, or he might have brought it for a disseisin done to his
grandfather, which was called a writ of ayel, or a disseisin done
to his great-grandfather, which was called a writ of hesayel, or
any collateral cousins, that were more remote that brothers and
sisters, uncles and aunts, nephews or nieces ; and this was called
a writ of cosinage.

But because the process in a writ of entiy became tedious,
when such actions were removed out of the lord's court into that
of the king, and thereby the process w'hich issued from three
weeks to three weeks in the lord's court, was depending so many
several terms in the king's court, therefore the assize was in-
vented, which was in the nature of a commission to put the
disseisee in possession by trial at one assizes ; and this was so
sudden and immediate a remedy, that the writ of entry became
obsolete; and therefore when the assize was the usual remedy,
the writ of entry began to be called a inTit of entiy in the nature
of an assize.

There were likewise other remedies, as the formedoti in re-
mainder and reverter, and a formedon in descender, which were
given by the statute de donis, which created estates-tail.

the same year with the statute de donis, vis, 13 E. I. c. 4. and occasioned by it.

But the proceedings of these real actions being dilatory and
expensive, and in many cases concluding the party upon one
trial, a more commodious method was contrived to dispute the
title to lands, which began in the reign of Hemy the Seventh in
this manner ; by forming a term for years, and then the lessees

bring-

(A) Of the different Kinds of Actions, 5^

bringing an ejectment to recover the term, and thereby to assert
the title of the lessor of the plaintiff: before this time, if a termor
for years, who only claimed as a bailiff to the freeholder, had
been ousted of his possession, he had only a remedy to recover
damages in ejectment, and could not recover the term itself (a);
but in the reign of Heni-y the Seventh, the courts of equity having Jenk.Cent.
obliged such wrong-doer to a specific restitution, the courts of law p- 67. See
likewise gave an habere facias possessionem to recover the term i7i ^n^^^?\ *"
specie. {a)1\e term

itself was recoverable only by covenant against the lessor. Fitz. Eject. 2 P 6. R. 2. F. N. B.
145. M. So early as the reign of Edivard the Fourth it was said by Fairfax in argument, that
the plaintiff in ejections firmcB should recover possession of his term, as he would in a
quare ejecit infra, ierminiim. 7 E. 4. 6. b.

Personal actions are ex contractu, or those founded on con-
tract, as debt, which is to recover the thing in mimero; or detinue,
which is to recover the same in specie; or (if it cannot be had) its
value, and also damages for the detention; and actions of acctw^w^,
covenant, assjwipsit, guatiium ?neruit, quantum valebat, and annuity.

Or ex delicto, as trespasses founded on force, which are tres- ||(*) There are

passes vi et armis; or upon fraud, which are actions upon the "i^"y actions

n\ L ^ ^ on the case

<^ase.(6) ^ which are not

founded on frmtd, as actions for injuries to incorporeal hereditaments and rights, for injuries
to reputation by libel and slander, for injuries arising from negligent acts of the defendant
himself and of his servants, and for various breaches of legal duty. See further, as to the dis-
tinction between actions of trespass, and trespass on the case, tit. Trespass {A), YoLYll.i
and see next page.j|

Therefore if a man gets the goods or chattels of another by
lawful means, as by bailment, borrowing, or pledging, he cannot
have an action of trespass, but must bring detinue or trove?; be-
cause the party had not violated his possession.

So, where a man comes to buy goods, and they agree upon a
price and a day for the payment, and the buyer takes them away,
trover does not lie, but an assumpsit for the money, because the
property was changed by a lawful bargain.

If I borrow a horse to go to Dover, and go to other places, the Roll. Rep. its.
owner may have an action on the case against me, for exceeding
the purposes of the loan : for so far it is a secret and fallacious
abuse of his property ; but no general action o( trespass, because
it is not an open and violent invasion of it.

Where the act is lawful (c), as the fixing of a spout, and 8 Mod. 272.
the consequence is injurious, the remedy is by case, and not 2Ld. Raym.
trespass. 1399. Forteso.

* 212. 1 btra.

634. 11(c) The lawfulness or unlawfulness of the act is not the criterion between the action
of trespass and on the case. Sec 2 Black. R. 894. 3 Wils. 499. Scott v. Shepherd ; where
instances are put by Blackstonc J. in which trespass lies for the consequences of a lawful act,
and where case may be brought for the consequences of an unlawful one. The distinction is
between direct or immediate injuries on the one hand, and mediate or consequential injuries on
the other. Trespass never lay for the latter. Ibid. And eee tit. Trespass (A), Vol. Vll.; and
the cases there. ||

E 4 (B) In

56 ACTIONS IN GENERAL

(B) In what Cases an Action will lie, and for whom,
and against whom.

TT is clear, that for all injuries done to a man's person, repu-
tation, or property, he shall have an action, and that for
every right he is to have a remedy ; for want of right and wanfe.
of remedy are the same thing. *

Co.Litt. 145. It is also agreed, that where a person has several remedies, he.
Stile, 4. jf^jjy choose which he pleases; but he cannot devise or lay hold

on any but those prescribed by the laws of his country ; for if
this were allowed, it would be constituting as many actions as
there are men, which would be highly inconvenient.

But in this the great difficulty is, when a man shall be said to
have suffered an injury, or to have such a right as will entitle him
to an action. And here the rules established by that society, of
which he is a member, must govern ; and therefore, though a
man has a right, yet if he be barred by the statute of limitations,
he can have no remedy.
Yelv. 196. jSo, if I promise by word only to 'convey lands, or to give

BrownMii f?oods without delivering possession, or, if I promise to build a
6 Co. 18 Roil, house without consideration (a), <^c. though by the laws of nature
Abr. 9. these promises are binding, yet no action lies ; for without deed

(a) But, if a ^^iW sealed and executed, or without consideration, no property
dertakcs'to"' ^^ altered ; and every such promise is esteemed, in the eye of the
build a house l^^j to be nudum pactum wide non oritur actio.

for me, and does it ill, an actim on the case lies against him. Kelw. 78. Roll. Abr. 9. So, if
a carpenter promises to repair my house before such a day, and does not do it, by which the
house falls, an action on the case lies. Roll. Abr. 9. but for this vide AssunrpsU and Action 07i
the Case.

'^M* t^*^' *^^' ^* ^ cases where there may be damnum absque injuria^ the
Noy°i84. pa^ty can have no action; as if a school be set up in the same

town where an ancient school has been time out of mind, by

which the old school receives damage, yet no action lies.
rIiII A! ^Vo7 ^°' *^ ^ retain a master in my house to instruct ray children,

though this may be to the damage of the common master, yet

no action lies.
Norris v. [If \ throw out windows in my house which overlook my

itoyic, ^^v*'* neighbour's house, and break in upon that privacy which he be-
The case of* ^^'"^ enjoyed, yet no action lies.

Clierrington v. Abney, 2 Vern. 646. was cited in the argument, but the court thought it de-
served no attention. See the note to this case in Mr. Raitbby's valuable edition of Vernon.

_, , ~ No action lies for the fees of a counsel, or physician ; they

Black. Com* ... ^ . j i j ^ j

28. Chorley ^^'"S g^^en as a mere gratuity.
V. Bolcot, 4 Term R. 317. 2 Atk. 332.

Russell v. The The parties to civil suits are, individuals, who must be parti-
st" R^°"' ^"l^i'ly ^^^sd, bodies corporate, and persons ^^e^a^/ incorporated,
667. (6) Such rendered liable to be sued, and capable of suing by the pro-
are the visions of particular acts of parliament, [b) The inhabitants of
statutes of a county or district, unless so embodied, cannot be called upon
haeraBd cry, ^^ answer crviliter for an injury sustained in consequence of any

breach

(13) In -wJhal Cases cm Action mil lie, ^x, 57

breadi of their public duty ; for collectively, and qua inhabit-
ants, they are not otherwise objects of civil jurisdiction.]

As the lavi^ grants redress for all injuries, and gives a remedy Co.Litt. 128.
for every kind of right, so it is open to all kinds of persons,
and none are excluded from bringing an action, except on
account of their crimes or their country ; as men attainted of trea-
son or felony, popish recusants, persons outlawed or excom-
municated, convict in apramunire, or alien enemies.

A man that hath a special and limited property in goods, as a sBulst. sii."
carrier that hath goods delivered to him, a sherift'who hath Sid. 438. Mod.
levied goods, a bailee who hath goods in his keeping, Si-c. shall so. 2 Sand. 47.
have actions against strangers who take them away, because y^Z '/^^'
they are answerable in damages to the absolute owner. sTermR. 594.

;||See tit. Trespass (C). Trover (C), Vol.VII.||

So, a man who has cause of action agamst two, may bring it Cro. Jac. is.
against which he pleases : as, if A. takes the goods of C., and B.
takes them from A., C. shall have his action against A. or B, at
his election, because both damnified C. in their taking.

So, if two of the sheep of A. have been lost, and one of them Alleyn, 5.

• XT A

is found again, and the shepherd of A. affirms it to be one of ^ T"'^"r"]i

them, whereupon A. pays for the feeding of it, and causes it to ^^j.^ jq{' g^ q]

be shorn and marked with his own mark, and after the shepherd,

knowing this to be the sheep of A.^ falsely and fraudulently

affirms to the bailiff of the manor, to which waif and stray

belong, that the said sheep is a stray, whereupon the said

bailiff' seizes it, Src, A. may have an action against his shepherd,

for that by his false practice he hath created a trouble, disgrace, /

and damage to him ; and though he hath good cause of action

against the bailiff j yet this will not excuse the shepherd.

II So, if^. positively state to the commander of a pressgang Flewster v.
that B. is liable to the impress service, who in truth is not so, *^°y'^'
and B. in consequence is impressed, A. may be sued in trespass ^nj ggg ' '
and false imprisonment by B. Alt'ter, it seems, if A. had only e Term R.
said he beliexjed B. was liable. || 315.

So, if one slander my title, whereby I am wrongfully dis- Alleyn, s.
turbed in my possession, though I have remedy against the tres- 1 "y/ico kf '^
passer, yet I may have an action against him who caused the gEast i.it'
disturbance. was held that

it is not suffi-
cient to prove a mere wrongful act of a third party as the consequence of the slander ; for the
plaintiff may have his remedy against him. The damage must be the legal and natural con-
fiequence of the slander; and see Cro. Jac. 471. 2 Bos. & Pull. £84. ; and tit. Slander {C)^
Vol. VII., where sec the cases as to slander of title,||

If there are several proprietors of a ship which hath usually Carth. 58.

transported goods for hire, and a master placed therein by the ^°^°" ^"|^

part-owners, who hath 60/. wages for every voyage from London g galk. 440

to T.y and J. S. without making any contract with the part- pi. i, 5 Lev.

owners, and none of them being present, delivers certain goods 258. 3 Mod.

on board to the master, to be carried for hire from London to ^21.8. C.

7\ and the ship safely arrives there, but the goods are spoiled Vern. 297

througli the neglect of the master, an action lies against the 298. 465.'

part-

^ ACTIONS IN GENERAL.

2 Vem.643. part-owners; for tlious;h the master is chargeable in respect of
8 Mod. 89. iiijj wages, so are the j^roprietors in respect of the freight, at the
sfr^sos''^' election of the plaintiff.

But Qucere whether all the part-owners are not to be sued; bnt clearly if they are not, it must
be pleaded in abatement. Stra. 55.3. 822. 2 Black. R, 947. ||It is settled that if the action in
sucli case be broniiiit in asjsnnijmt, all the i)art-owners must be joined, or the non-joinder may
be pleaded in abatement, but it cannot be otherwise objected to. If the action be shaped in
tort against the defendants as common carriers, according to the custom of the realm, then it
seems the non-joinder of some parties cannot be objected to at all. See 2 New R. 454.
12 East, 89. 452. 2 Marsh. 485. 3 Brod. & Bing. 54. But if the defendants are not common
carriers, and the action is, in fact, founded on the contract to convey the goods, then, though
the form of action be in tort, still it is substantially an action of contract, and the non-joinder
of some parties may be pleaded in abatement. Idid. ; and see ante, Abatemenit, and Abbott
on Shipping, 95, (5th edit.}{|

M d Id' l'"^" attainted person is liable to civil suits; but he ought not

case Post. ^^ ^e charged without leave of the court, or of a judge. ||
Cr. L. 61. Co. Entr. 246. a. b. Cro. Eliz. 516. Co. Entr. 248. 2 Anders. 58. Moor. 753.

3 Inst. 215.

sCo. 87. but n'^HE distinction herein, with respect to real actions, depends

for this wrfe q^ the different kinds of writs; for all original writs are of

Owen 11 ^^^ sorts, viz. breve nominatum et innominatum. The first con-

Kelw.\o5. tains the time, place, and demand, very particularly; and

Dyer, 145. therefore in such writ several lands by several titles cannot be

2Brownl. 274. demanded in the same writ. The other contains only a general

complaint, without expressing time, damages, S^'c. as the writ of

trespass quare clausum freight^ Sfc. and therefore several lands

coming to the demandant by several titles, may be demanded in

such writ.

Cro. Car. 20. As to personal actions, the difference arises from the above-

-'^' v*^i"''„.» mentioned division of personal actions, viz. such as are ex con-

566. Keb. 847. ^ ^ , , ^ i t . r-ii ,,i c

Bro. Joinder tractti, and sucn as are ex delicto, or founded on a toit ; tlieretore

in Action, 97. debt on an obligation and on a mutuaUis may be joined, because

139. (a) 1 he wanted by the authority given by the general words of the writ.

tni6 reason ^ , ^ ^ ..

whv actions So, debt and detinue may be joined in the same writ, because

may or may there are writs in the register, in which they are both comprised
not be joined, in the same writ. So, debt upon a lease and for clothes, they
IS not the being in the words of the same writ. But debt and account, or
of the defend- ^^^^ f^nd trespass (a) cannot be joined.

nnt's pleas; for if that were the reason, debt upon an obligation, to which the plea is non
at factum, and on a mutuatus, nil debet, could not be joined : therefore the true reason arises
from the difference of the process, and the fines paid on taking out the original ; for in debt
the old process was summons, attachment, and distress, and on taking out the original a.
fine was paid to the king, which was in proportion to the sum demanded; but in trespass the
process was a capias, because the man that had committed a tort might be supposed to fly
from justice; and in this action the court set a fine on him in proportion to hii offence, and
levied it by a capiaiur. Gilb. Hist. C.P. 6.

8 Co. 87. In personal actions several wrongs or trespasses may be joined,

"Tev 9- because they may be comprised in the same writ, and so may

Raym. 233. several actions, on the case, where the case is of the same kind ;

as an action for a fraud on the delivery of the goods, and on the r/g^ ^^^ jj{-_

warranty of the same goods, being both on the contract. So, ficulty as to

against a common carrier on the custom of the realm, and trover what counts

may be ioined, because botii on the tort, it being a violation of ™^>; be joined
^i_ / ^ ^ a 1- ii, u / \ 1" the some

the custom not to deliver the charge, [a) declaration

hath at length met with an easy solution : any counts that admit of the same plea^ and are
followed by the same judgment, may be included in the same declaration ; but counts which re-
quire a different plea, or receive a different judgment, cannot be joined ; and yet the cause of
action comprized in such counts may in both cases be the same. Thus, a count against a
carrier on the custom of the realm and one in trover may be joined, because the plea and the
judgment proper to both are the same ; but, instead of the count upon the custom of the
realm, let a count \7. assumpsit be substituted against the carrier, and trover cannot be joined
with it ; because the plea to each is different. Brown v. Dixon, 1 Terra R. 576. Mast v. Good-
son, 5 Wils. 354. Dickon v. Clifton, 2 Wils. 319.] IJIn extending the rule beyond what the
cases cited warrant, the above note is not accurate, for there are cases where counts may be
joined, although the plea is different ; thus, debt on bond and on a mutuatus, and debt on bond
and on judgment, may clearly be joined. And even taken only affirmatively, the rule is not univer-
sally true, that where the plea is the same and the judgment the same the actions may be joined ;
for this is the case with the actions of trespass, and trespass on the case : the plea is the same,
and the judgment in each is for damages and costs; and though in general the judgment in
trespass is quod capiatur, and in case, quod sit in misericordia, yet sometimes there is an entry
of a capiatur in case as well as in trespass. SeeTidd.Prac.il. And yet they cannot, in
general, be joined. 2 Will. Saiind. 117. c; and note (c) by the last learned editors.||

But actions founded upon a tort and upon a contract cannot be 5 Lev. loi.

joined, as ass7tmpsit and trover against a carrier ; for though these ^^^- ^^^* ■^^•

come under the general head of actions on the case, yet they are j^, jyj^j _*

more distinct cases than debt and account (6), which cannot be SeeLd.Ray'm.

joined. 38. Salk. lo.

3 Salk. 204.
5 Mod. 85. Comb. 332. {b) Bro. Joinder in Action, 97- ||But if the carrier be sued in case
upon the custom of the realm a count in trover may be joined. Brown v. Dixon, I Term
R. 277.11

If trover and assumpsit are joined in one action, and upon and ^ Lev. 99.
guilty the jury quoad the trover find for the defendant, and quoad ^^^ *"j.
the assumpsit for the plaintiff, yet he shall not have judgment ; for
these cannot be joined in the same action, and the severance by
the jury will not help it, the declaration being naught at first.

One action will lie for entering the house of the plaintiff, break- Alleyn, 9.
ing his chests, and carrying away his goods, and for beating his Stile, 43. 202.
servant p^ quod servitium amisit. ^_ ' al™'f.^e .

Hand see Ditcham v. Bond, 2 Maul. & S. 456. ace.||

yAnd so also for entering his house and debauching his Worsland
daughter per quod servitium amisit, |] v. Walton,

2 New R. 476.

If in an action upon the case the plaintiff declares, that whereas Cro. Car. 20.
accommodassit to the defendant a gelding ad cquitand. ah L. usque ^.^^ *"^
£., ct ibidem salvo deliberand. to the plaintiff, the defendant r^\ Yiut the
intending to deceive the plaintiff, rid upon the said gelding from plaintilFhad
L. to E. and E. unto L. again, and by that riding so much judgment,
abused the saitl horse, that he became of little value; and though ^^'"? ^^^^^
the plaintiff at E. demanded a re-delivery of the said gelding, yet „^^ Hobart
the defendant refused, and yet doth refuse to deliver him, and the defendant
hath converted the said gelding to his own use; this declaration might have de-
is not good (c), because it contains distinct matters, for part is '""'"red for

'^ ^ ' r 1 J the doubleness

founded

ACTIONS IN GENERAL.

tton.

Orton V.
Butler, 5 Barn,
& A.652.;
and see
1 New R. 43.
6 East, 3.33.
Brill V. Neele,
3 Barn. & A.
208.

Hill,
Brownl. 86.
Cro. Jac. 68.
Moor, 914.
Noy, 3. S. C.

of the declara- founded upon the contract, and part upon the torty which are
several causes of action.

II And so where a count stated that the defendant had received
to plaintiff's use a certain sum of money to be paid by defendant
to plaintiff on request, and that the defendant did not pay on
request, and converted the money to his own use, the count was
held bad on demurrer, it not being, either in form or substance,
a count in trover. A count stating that defendant was indebted
to plaintiff for work and labour, and being indebted, that he
undertook and promised to pay, <^c. whereby an action hath
accrued, Sfc. is not a good count in debt, and tuunot be joined
with counts in debt.||
Hob. 249. ^^ ejectment and assault and battery were joined in one writ,

s'^cT'and ^^^ "*^'' ff^'^ty pleaded, and a verdict and entire damages given
Winch held for the plaintiff"; and it seems to have been aided after verdict,
the writ

naught, but the damages being found severally, the plaintiff released those for the battery, and
had judgment for the ejectment.

Yelv. 65. Where one hath a right to recover in the same kind of action,

Champernoon though he derives his right from different titles, yet being con-
joined in him, he may recover in one action : as if in debt upon
2 & 3 E. 6. c. 13. for not setting forth tythes, though the plaintiff
shews, that by prescription the rector of A. hath had two parts,
andlhe vicar of J. the third part of the tythes there, and that the
said rector and vicar, by several leases, did demise to the plain-
tiff^ whereby he became pt'oprietarius of the said tythes, and the
defendant sowed, Sfc. this action is well brought; for though the
vicar and parson could not join, because they claim severally by
divided rights, yet when both titles are conjoined in one person,
the matter of the tide is also conjoined; and this being a per-
sonal action and founded upon a wrong, it is sufficient to shew
generally, that the plaintiff isjt>7??fl;/-m or propnctarius of the tithes,
without saying by what tide.

If A. being seised of a third part of a messuage, ^'C. in fee,
demises the same to B. for years, who assigns to C, and A. by
bargain and sale enrolled conveys his reversion to D. and his
heirs, who was then seised of another third part in fee, and
afterwards the said Z). leases his third part also to the said C.
for years, and dies ; and his heir by bargain and sale enrolled
conveys the reversion of the said two third parts to^. and his heirs,
after which waste is done ; E. (a) may bring one action of waste
upon these several leases, for that the interest neither of the
theassignment terms nor of the inheritance was severed or divided to several,
in one and ^"^ ^^^ ^" °"^ person at the time when the waste was done.
the same thin<». Pt^f Popliam Ch. Just. Vide head of Waste.

Cro. Jac. 329. If in covenant the plaintiff shews that A. was seised in fee of
Pyot and Lady one messuage, and possessed of another for a certain term of

'^^^ 1 • 1111 t t r* •% r*

years yet endurmg, and let both to the defendant for a less term
of years, and that the defendant did covenant to repair, S^x., and
shews that A. by one deed did grant to the plaintiff the reversion
in fee, and by another the reversion for years, ^c, and that after

the

Poph. 24, 25.
Haydock v.
Warn ford,
Cro. Eliz. 290.
Owen, 11.
S.C.

(rt) And the
rather because

St. John. Lev
110. S.C.
cited.

the houses were out of repair, S^c. this action is well brought;
for as upon several leases or upon several grants of a reversion
one action of vk^aste lies, so for the same reason one writ of cove-
nant will lie.

But one cannot in the same action join a demand against one Hob. 88. Her-
in his own right, and a demand on him as representative of renden and
another ; as if in assumpsit against an administrator, the plaintiff 558"g'^*p S '
declares upon a sale of goods to the intestate for 200/. and upon this wVit- head
another sale to the defendant himself for 27/., and that upon of Executors
account the defendant was found indebted to the plaintiff' in '^"^ Admms-
these sums, and promised, Sfc. the declaration is naught, for the '" '"^*^ ^'
charge being: in several manors, viz. in his own right, and as
administrator, it ought to have been by several actions.

[Where the same persons are assignees of two bankrupts, Hancock
under separate commissions, they cannot join in the same action and others,
a joint debt due to both the bankrupts, with separate debts due jja-f^ar^i ^'
to each. ^ 3 Term r! 433.

But where the same persons were assignees o? A. and B. and Streatfield
likewise assignees of C, and they declared as such for a joint de- and others, as-
mand due to all the bankrupts, such declaration was holden signees, v. Hal-
good upon a motion in arrest of judgment.] ^ ^^' ^ ""^

II But if ^. 5. and C. are appointed assignees under three Ray v. Davies,
separate commissions against three bankrupts, they cannot sue 2 Moo. 3,
as if they were joint assignees of the three bankrupts, or it is a
ground of nonsuit.

Assignees under a joint commission against A. and B.^ in suing Stonehouse v.

on a separate contract made with A. may describe themselves , ^'^' ^\^r.
11 1 • r ^ • 1 "^ • r, I, 3 Camp. 599.

generally as the assignees 01 A., without nammg Jo.\\ Harvey v.

Morgan, 2 Stark. 17.

Several persons may join in an action where their interest is ^(^^ this vide

joint; as if the several cattle of A. and J5. are distrained, and head of Jo?M^

C, in consideration of 10/. to him paid by A. and J5., assumes i5g j^q]] '

and promises to them to proc.ire the cattle to be re-delivered to Abr.51. S. C.
them, if they are not re-delivered accordingly, one joint action
lies, for the consideration is entire and cannot be divided.

So, if A. hath one mill and B. another in the same manor, 2 Lev. 27.

which they have used to repair, and time out of mind all the Litheley and

grain which was ground and spent in the houses of the tenants ^?^^,'^°";

of the said manor, and was not ground at one of the said mills, 2Saund^ii5

hath always, and ought to be ground at the other, and C. a Vent. lei.

tenant of the said manor, grinds at another mill, ^c. A. and B. S. C. agreed

may join in one action against C, for the damage is entire to Pf ^"^'f"^ '^""
\ /u 4.1, • -11 o » & riai7i; but

both their mills. because the

plaintiffs had declared that all the grain ought to be ground at those two mills, or one of them,
which might be, if all ought to be ground at one of the mills and nothing at the other, for
their expedition they prayed a nil cap. per billam.

II So also certain persons, dippers of the wells at Tonhridge^ Wellerv.
duly chosen by the homage of the Court Baron, and approved ^^l*
by the lords according to the terms of a private act of ^^j ^^^ ^^'*-
parliament, were held entitled to maintain a joint action i Will.

against

ACTIONS IN GENERAL.

Saimd. 125. against the defendant for exercising the business of a dipper,

2/rf. 116. not being duly chosen and approved according to the act; for

though each dipper received gratuities for his separate use, yet

they were all jointly concerned in interest as against a stranger

disturbing them in their employment.

Townsend v. So a herald and a pursuivant at arms may maintain a joint

Neal, 2 Camp, action for work and labour in making out a pedigree, both having

*^°' been on duty when the order was given, although one of them

was applied to by the defendant.

But where two parties agreed with defendant to assist him
with their horses, and they were to give in their accounts sepa-
rately, and each assisted him with three horses, it was held
that the contracts were separate, and the parties could not sue
jointly. II

If within the parish of A. there is a custom for the parishioners
yearly to elect two persons to be churchwardens there, and ac-
cording to the said custom B. and C\ are elected, but the surro-
gate of the bishop refuses to admit and swear them into the said
office ; upon which they bring a mandamus, and he falsely returns
a custom for the vicar to choose one churchwarden, and that
therefore he cannot admit both the said parties, but is ready to
admit one of them ; they may join in an action for this false re-
turn, for the niandajmis and whole prosecution thereof was joint,
and this is no office of profit, nor action brought for that, but
for the unjust return.

So, if the registrar of the bishop refuses to register a licence of
a chapel for a conventicle, according to 1 W. & M. c. 18. and
upon a mandamus to do it makes a false return, several of the
inhabitants may join in one action, against him.

But, if one man calls two other men thieves, and shews in
certain of what, ^c. they shall not {a) join in one action against
him ; for the wrong doer to one is no wrong to the other,
(a) So in false imprisonment. Dyer, 1 9.

Smith V.
Taylor,
aChitt. 142.

3 Lev. S62.
Ward et al.
V. Brampston.

3 Lev. 365.
Vide 12 Mod.
349. 571.

Dyer, 19.

Gouldsb. 76.
S. P. Cro. Car.
512. S. P.

Kelw. 52.
Fitz. Joinder
in Action, 17.
Reg. 105.
Owen, 106.

Cooke v.
Batchelor,
3 Bos. & Pull.

Barratt v.
Collins,
10 Moo. R.
446.

Dyer, 351. Q.

So, in assault and battery ; for the battery done to one cannot
be the same as that done to the other ; and one battery may
hurt more than the other.

l|However, if slander is spoken of two partners respecting their
joint trade, they may have a joint action.
150.; and see 2 Will. Saund. 116. a. 116.b.

Where two plaintiffs jointly sued the defendant for a malicious
arrest, alleging as special damage a joint injury from the wrong-
ful imprisonment, and also a joint expense thereby incurred by
both, the court ordered the judgment to be arrested, since the
injury from wrongful imprisonment could not be a joint damage.
But it seems that on the court observing that the jury had only
found damages for the joint expense, they ordered the postea to
be amended. ||

If a man holds several lands of several lords by heriot custom,
and to defraud them of their heriots makes a fraudulent gift of all

his

his beasts heriotable, all the lords may join in one action upon the
ISEIiz. c. 5.

If two joint owners of a sum of money are robbed upon the Dyer, 570.
highway, they may join in one action against the hundred
in whicli, 4^c. otherwise, if the sums are several, and several
properties.

\\A. B. and C. having been appointed assignees of a bankrupt, Brand v.

and acted as such, A. and B. pay each half of the solicitor's bill. Boulcott,

A. and B. cannot maintain a joint action against C for his pro- ^ jl"*^- '^ ;""•
... . , ,•' , . ° ^1 ^ 2.j5. ; and see

portion or the sum paid; each must sue him separately. Graham v.

Robertson, 2 Term II. 282. Kelby v. Steel, 5 Esp. Ca. 194.

But where A. B. and C. having dissolved partnership, and C- Osborne v.

after such dissolution drew bills in the partnership name in -£.'^^\,). .

favour of Z).; upon which Z). brought his action against^. i5. and .,„j sJe " '

C, and C. having pleaded his bankruptcy, Z). entered a nolle ioEast,4i8.

prosequi as to him, and recovered judgment against A. and B.j ' Carr. & P.

which judgment was satisfied by their attorney, who advanced 1^'^f "' ^
part of the money for them on their Joint credit^ and borrowed
the rest on ihe\vjoi7it credit, it was held that the sum so paid in
satisfaction of the judgment might be recovered by A. and B. in
a joint action against C. It would have been otherwise if each
had contributed his share to the attorney to pay the demand.

The several members of a club associated for the purpose of Everett v.

buying coals and dividing them in proportions amongst them- 1'i"dall,
selves, cannot maintain separate actions for penalties against the sp. i69.
seller. I]

If A. delivers goods to B. to deliver over to C, and B. does i Bulst. 68.

not deliver them over accordingly, but converts them to his own Hiird..32i.

use, either A. or C. may have an action against 5., but both shall said that th^

not have an action ; but he who first begins his action shall go could not both

on with the same. join.

If A. is seised in fee of the reversion of a close expectant upon 5 Lev. 209.

a term for years, and B. is possessed of another close adjoining Bidlesford and

thereto, between wiiich closes there runs a rivulet, and B. stops Vn 3,4,

it, per quod the close of A. is surrounded, so that the timber- q^^, Jesser v!

trees, Sfc. become rotten ; A. in respect of the prejudice to the Gifford.

reversion, may have one action, and the termor in respect of the llSee Knight

possession, and of the shade, shelter, S^c. may have another action, T'n:^^ '' „ n
and a satisfaction given to the one is no bar to the other. °"

One action will not lie against several men for speaking the Palm. 3x3.

same words ; for the words of the one are not the words of the Adjudged

other, and can no more produce a joint action, than their words "P°" mot'on

1 . u • I .. u after a verdict

and tongues can be said to be one. ^-^j^. pi^intift'

Cro. Jac. 647. S. C. adjudged. Style, 244. S. P. 2 Burr. 984. S. P. Bulst. 15. S. P. but
there said, that it was otherwise in the spiritual court, tor that one libel may be against
several persons. 1| Action against husband and wife for words spoken by wife, and action against
husband only for words spoken by him, cannot be consolidated. Swithen v. Vincent, 2 Wils. 227.;
and see 1 Chitty on Plead. 64. 204., and Vol. I. tit. Baron and FemcJ^

But, if two men procure another to be indicted falsely for a Latch. 262.

comiuoii barretor, he may liave an action upon the case against So,iftwocon-

•' *■ - ° V spire to mam-

64.

ACTIONS IN GENERAL.

t ' a 't d '^^"^ ^^^^ ' though ill strictness the procurement of one is not
one only ^ives the procurement of the other, (a)

money. Bro. Joinder in Action, 47. Fitz. Error, 31. Fitz. Maintenance, 15. So in trespass.
Latch, 262. Vide head of Trespass. So, one decks tanltim lies against all the jurors who
take money, for they all give but one verdict, and are but one jury. Bro. Joinder in Action,
5. 47. 100. 108. Fitz. Dedet tantum, 1. 4. 6. (a) It is in the nature of a conspiracy. It is one
jamt, entire act.

Schuidam v. [] Where there are two or more bailiffs, S^-c. of a borough, a

Bunniss, joint action will lie against them under the stat. of 3 Geo. 3. c. 1 5.

for refusing inspection of the books and papers wherein is entered
the admission of freemen, though the words of the statute are in
the singular number, " mayor, or bailiffj S^-c" for the breach of
trust in one is a breach of trust in both, they being in law but
one officer.]

II Where a landlord demised to three persons jointly, and two
of them without his assent assigned their interest to the third, and
the plaintiff's goods being on the premises were distrained by
the landlord for rent; it was held, that the plaintiff might sue the
three persons jointly for money paid by him to redeem the goods
from the distress, for all the three were liable to the landlord by
covenant to pay the rent.||

[One action, it seems, will lie against all the coroners of a
county for a false return to a capias utlagatum.

Where two partners contract to pay a certain sum of money
equally out of their private cash to a third person, they must be
jointly sued upon this contract, for it is joint.]

II Two candidates at a county election are jointly liable to
the sheriff for the expenses of the election, if they have jointly
promised to pay ; but if they have not jointly promised, they must
be sued separately under the stat. 18 Geo. 2. c. 18. § 7.

Where a party of several persons dine together at a tavern
they are jointly liable for the whole expense, and not merely
each for his own share. But the officers of a regimental mess
are only separately liable, each for his own share.

Cowp. 192.

Exall V.
Partridge,
8 Term R.

308. S.C.
3 Esp. 8.

Freem. 191.

Byers v.
Dobev, 1 H.
Blac.236.

Wathen v.

Sandys,

2 Camp. 640.

Where goods were ordered by one of two chapelwardens, for
the use of the chapel, it was held that the chapelwarden giving
the order might be sued separately without joining his brother

Forster v.

Taylor,

3 Camp. 49.

Browne v.

Doyle,

3 Camp. 51.

Shaw V. His

lop, 4 Dow.

&Ry.241.;

and see 8 Moo. " -jgn

20. iBing. '«araen.

201. 6 Dow. & Ry. 122.

Carnev.Legh, Where several actions were brought against several members

6 Barn. & C. ^f ^ mining partnership for the same debt, the defendant in one
action having paid the debt and costs in that action, the court
stayed the procedings in the other actions without costs.

The same plaintiff may bring several actions against several
parties, all liable to him in respect of the same injui'y, where he
does not obtain "adequate redress in the action against the party
first sued. ||

A man cannot declare against one defendant for an assault and

judged. llAnd battery, and against the other for taking away his goods ; be-

Alcxander^' ^^"^6 the trespasses are of several natures, and against several

5CamD.35.11 persons, (i)

^b^ Ana are several distinct causes of action.

124.

Morris v.
Robinson,
3 Barn. & C.
196. 5 Dow.
& Ry. 35.

Stile, 1 53. ad-

ACTIONS LOCAL AND TRANSITORY.

If A. leases for years to B. and C. rendering rent, and C Palm, ms.
assigns his moiety to D. and after rent is arrear, A. may bring
one action of debt for the rent against B. and D. for the rever-
sion remains entire.

ACTIONS LOCAL AND TRANSITORY.

""^ I -"/^-'f T^"

I^RIGINALLY all actions were tried in the proper counties
in which they arose, pursuant to the maxim, vici7n mcinofum
facta jyrccsumuntur scire: this created no inconveniency, for all
men being anciently in decenna^ they were easily come at, the
decenna being responsible for their appearance. But, when the
custom of the decennary began to wear off, men used to fly from
their creditors, and this begot the distinction between local and
transitory actions; the first relating to lands, which must be tried
where the lands lie ; the other, a debt or duty adhering to the
person wherever he fled. Hence men omitted to date their con-
tracts from any certain place, and began their obligations with
noverint universi. When this distinction was established, the
licence it gave was soon abused to a great degree ; for plaintiffs
would lay their actions far from the place where the fact was done ;
and the defendants, for fear of being outlawed, where necessitated
to carry their witnesses into that county, how far soever remote
from the place where the cause of action arose.

l|To redress this abuse, and to compel the suing out of all writs
arising upon contract in the very county where the contract
arose, it was ordained by the statute of 6 R. 2. c. 2. that if the
writ was of one county, and the plaintiff" declared of another, the
writ should be quashed. But, this not expressly forbidding the
writ to be sued in a foreign county, the statute of 4- H. 4. c. 18.
directed all attornies to be sworn that they would make no suit
in a " foreign county." And the court rules of 15 J^liz. and
A. D. 1630. made it highly penal for attornies to transgress this
statute.

Soon after the statute of H. 4. a practice began of pleading in
abatement of the writ the impropriety of its venue, even betbre
the })laintiff^ had declared. At first in the reign of H. 5. the
courts examined the plaintiff" on oath as to the truth of his venue :
but soon after they allowed the defendant to traverse the venue,
and to try the traverse by the country. But this practice being
subject to much delay, the judges introduced the present method
of changing the venue upon motion, upon the equity of the sta-
tutes of R. 2. and H. 4. Which Lord Holt says began in the
time of James I. And among the fees of the King's Bench found

Vol. I. F by

7 Co. 1. Gilb.
Hist, C. P. 89.

Black. R.

1032.

Rastall tit.
Debt, 184. b.
Fitzh. Abr. tit.
Briefe, 18.

Salk. 670.

60 ACTIONS LOCAL AND TRANSITORY.

by a jury under the king's commission 1630, one is, " for every
" rule to alter a visne." Tyre's Jus. Filiz. 231. The form of
the rule and affidavit are also stated in &yl, Pr. Reg. (edit. 1657.)
331., as established in 23 Car. 1.

An affidavit was necessary, because the motion succeeded, and
was equivalent, to a plea in abatement ; and these are called the
common rule and common affidavit in 16 Car. 2. 1 Sid. 185.;
though the practice did not universally prevail till after the sta-
tute of jeofails 1 6 & 1 7 Car. 2. c. 8. Before that it was usual to
wait till after trial and verdict, and then arrest the judgment for
want of a proper venue. But the statute having abolished that
practice, the mode of changing the venue by motion and affidavit
began universally to prevail.

Yet as it would be hard to conclude the plaintiff by the single
affidavit of the defendant, he is at liberty to aver that the cause
of action arose in the county where the venue is laid, and to go
to trial on that fact at the same time that the merits are tried by
undertaking to give material evidence in that county. This is
equivalent to joining issue, (as in Fitzherbert before cited,) that
Gilb. H.C.P. the cause of action arose in the first county. And if the plain-
*•*• tiff fails in proving it, he must be nonsuited at the trial; which

has in this case the same effect as quashing the writ by a judg-
ment on a plea in abatement. ||

And here we shall consider,

(A) What Actions are Local and Transitory.

(B) In what Cases the Court will change the Venue.

(A) What Actions are Local or Transitory.

That all A LL actions real or mixed, as trespasses, quare clausum fregit,

actions on pe- ejectmenU *waste. Sec. must be laid in the county where the

nal statutes i i t / \ ^

must be laid 1^"^*^ he. {a)

in the proper county, vide Action qui tain, letter (C). Co. Lit. 282. 6 Mod. 222. (a) If not
laid so, it is cause of demurrer. 2 Black. R. 1070. ||But advantage can be taken of it only
by demurrer ; for it is aided after verdict by the statute of 16 & 17 Car. 2. c. 8. Mayor, &c.
of London v. Cole, 7 Term R. 583., and see Willes, 431. Not, however, in the case of an
ejectment, for the sheriff of one county cannot deliver the possession of land in another. If
the declaration do not set out the parcels (as is now often the case), it is necessary to set out
the indenture on oyer in order to raise the objection. ||

Cro. Car. So, an action of debt for rent, ||or covenant for rent or not

^^^ 'rh""?^* repairing, 8^c.,^ against an assignee of a term on the privity of
V. Cornwall estate is local, and will lie nowhere but in that county where
1 Wils, 1*65! the lands are.
JCarth. 182, 185. Stevenson v. Lambard, 2 East, 580.|1

s Mod. 537. g So, also, the assignee of the reversion must sue the assignee

Cartb ^s? of the term in the county where the land lies. And so also, as

1 Salk.8o. i-o the assignee of the term suing the assignee of the reversion;

5 Rep. 17. a. for

(A) WItat Aciions at^e Local or Transitory. wf.

for the statute transfers the privity of contract to the assignee of
the term, in the same manner as the lessor had it; and the lessor
must sue in such case where the land lies, and be sued there. ||

So, where A. granted a rent-charge to B. and C. for their Hob. 37. Pine
lives, and the lands out of which it issued came to the defendant ^- Countess of
after the death of A., and the plaintiff, as executor of the sur- '^^^ ^'^'
vivor of the grantees, brought debt for arrears incurred in their
life-time, and laid his action in the county where the lands lay ;
on appHcation of the defendants to have it tried elsewhere,
suggesting the plaintiff's power and interest in that county;
it was holden a local action, and not triable elsewhere.

A.f as assignee of a reversion, brought covenant against the Carth. 182
assignee of the lessee, on an express covenant between the lessor Damer and
and the lessee, for payment of rent reserved out of lands which Barker. Stilk.
lay in IrclandL and which was made payable in London. On ^^.'^P , ^J.^

I ^ xT_ • • T • o y • '' 1111 1 1 5 Mod. 336.

plea to the jurisdiction or the court, it was held, that though ghow. 191.
such action may be maintained here by the lessor against the S. C. 6 Mod.
lessee (a), yet that by the assignment the privity of contract was 194- S. C.
destroyed; and there being nothing but a privity of estate ^Jtted^tobe"
between the two assignees, it made the action local. good law,

there being no privity of contract remaining ; and there is no difference between debt and
covenant where the action is by lessor against lessee, &c. {a) The assignee of the reversion
may maintain debt or covenant upon the statute 52 H. 8. cap. 34. against the lessee ; <per
Holt C. J. 6 Mod. 194. for the pnvity of contract is transferred to the grantee by the statute.
Carth. 183. i Saund. 238. S. P. 240. S.P. ||See the notes to this case in Will. Saunders,
(5th ed.)]| 3 Lev. 154. 1 Wils. 165. l|So also may the lessee bring covenant against the
assignee of the reversion in any county by virtue of the statute. Thursby v. Plant, 1 Will.
Saund. 258.|i

II Whenever the action is brought upon the contract itself it Bulwer's case'

is transitory ; therefore the lessor may bring debt or covenant J „%' |' ^' .
- • ^ .1. 1 111 '' ^ • 11 -1 WiU.Saund.

against the lessee, and the lessee covenant against the lessor m 241. e.

any county.

An action of debt for use and occupation is not local. || Egler v. Mars-

don, 5 Taunt. 25.

But where the lessor brought debt against the lessee, and 6 Mod. 194.
declared on a demise of lands which lay in Jamaica^ on plea to yat^^'^Salk
the jurisdiction of the court, and objection, that if the defendant 65i. p.si.
had any good local plea, he was hereby deprived of it ; the S. C.
court held, that this being on the privity of contract, was a (*)2 Stra. 776.
transitory action {h\ and might be laid any where; and that if a ^'b 82. pl"l9.
foreign issue arose which was local, it might be tried where the (c)'For thin
action was laid; and for that purpose there may be a suggestion mde 6 Co. 48.
entered on the roll, that such a place in such a county is next 7 Co. 26.
adjacent (c) ; and it may be tried here by a jury from that place, ^*^"*" ^^'
according to the laws of that country : and upon nil debet pleaded,
the laws of that country may be given in evidence.

If a declaration contains matters lying in two counties that Cro.Eliz.64«,
join, it shall be tried by both counties, on a venire directed to IJAs to an
the sheriffs of both counties, who are to summon six of each ^f^}^ *'" .f ";
^°"" V • see St. 7. R. 2.

c. 10. Co. Litt. 154 a. F.N. B. Iso a., and Z5 H. 6. so. a-lj
F 2 II Where

68 ACTIONS LOCAL AND TRANSITORY.

Biilwer's case, || Where the action is founded upon two things done in severs
7 Co. 2. a. counties, and both are material or traversable, and the one
f*^*' ^ li ^^^'^' without the other doth not maintain the action ; there the plaintiff
Mayor &c. "^^y ^^i"'"© l^'s action in which of the counties he will.H
of Loiulon V. Co!e, 7 Term II. 583. Pope v. Davis, 2 Taunt. 252.; and see Cro. Eliz. 646*
Sed vide 3 Barn. & C. 700. 4 Barn. & A. 179.

Latch. 262. An action of debl ag-ainst the executor of a lessee, in the

271. .J Co. 24. detinet for arrears in the testator's lifetime, may be brought any
"^m°^-^"'k' where; but where it is in the debet and detinet for rent accrued
det'mct ^" ^'^^ executor's time, it must be where the land lies, (a)

against an executor for rent accrued in his own time may also be laid any where j for he is
chari^d on the privity of contract, and is only liable to the extent of assets. 1 Sid. 266.
2 Lev, 80. 1 Will. Saund. 1. note 1. and 241. c. notes, and cases there cited.jl

Co. Lit. 282. All personal actions, as deht^ detinue, assaidt, deceit, trover and

Debitumetcon- conversion, account, Sfc. may be brought in any county, and laid
mdliusloci 2 ^^ ^"7 P^'^^e ; and the defendant cannot traverse it, or be allowed
Inst. 231. to say, that the cause of action accrued in another county or

7 Co. 3. different place, except in the case of an officer of justice, who

may plead a special justification.
Griffith V. [An action against the sheriff for a false return is transitory ;

Walker, 1 for that which is false is universally so.

\Vlls.556. "^

Gregson v. The assignee of a bail-bond may bring an action upon it,

Heather, either in the county where it is taken, or in that where it is J

2St.-a.727.Ld. assigned. J

Kaym. 1455. ° 1

B.C. \

Mayor of Ber- An action for breach of customs of a town is local: the aver-'

wick V. Lwart, ment of an immaterial fact will not in such case warrant the
2 Black. R. , . . „ , ^ .

1068. laying the venue out or the proper county.] I

b. 6 Mo j. 228 "^^ action may be brought on a contract or matter which

2 Ld. Raym. ' arose beyond sea ; as, if A. enters into a bond to B. in any
1043. 2 Salk. foreign country, and the bond bears date in no place, B. may
^•''^- P'-^- bring his action where he pleases, and allege that the bond was
" L(I Rav-in "i^de in any place in England ; but if there be a place mentioned,
1212. ii'Mod. ^s Bourdeana: in France, then shall he allege that the bond was
51. pi. 21. made in quodam loco vocat. Bourdeaux in France, (to wit) in
Cowp. 177. Islington in the county of Middlesex, and from thence the jury

shall come.
Bayley on ||In declaring on foreign bills, though it is usual to state that

fl i ir^ ^^^ ^^^^y were drawn at the place where they bear date, adding the
V. Morris venue under a videlicet, yet this does not seem necessary. 1|

3 Camp. 504. ; see 2 Barn. & A. 501. 1 Barn. & C. 16.

Dutch W. L [An action may be maintained in England, to recover money
MoserYs^tra ^°^''^°^^'*''d at Amsterdam, and covenanted to be paid in bank
612. 2Ld.''' there. «

Kaym. 1352. S- C. '

F^hf'a" ^' Trespass and false imprisonment will lie in this country fo •

Cowp'. 161. ^" ^"j"0' of that nature, committed abroad in an English set ■

tlement.
Cowp. 180. It was formerly thought that an action arising abroad, though

(B) In "what Cases the Cornet uill change the Vctiue. 09

in its nature local, as trespass quare claimimfregit, might be main-
tained in this country, if the satisfaction soug/it wej-e mereli/ per-
sonal and for damages, and there would be otherwise a failure of Doulson v.
justice : but that opinion hath been over-ruled, bein<y found to Matthews, 4.
be inconsistent with the settled and acknowledged distinctions f'enn II. so.-,
between actions local and transitory.] ^^g '

II Although an action for diverting the water of a navigation be Company of

in its nature confessedly local, yet it is not necessary to give a Proprietors

local description to the nuisance; and, therefore, if it be doubtful ^^j ip^gj^^'^-'^

whether the place where the navigation is stated to lie be laid in Navijration

the declaration as avenue or as local description, it will be v. Donalas,

referred merely to venue, and need not be proved to be at such 2 Eii^t, 497.
place; but it is sufficient if it be at any other place within the
county..||

(B) In what Cases the Court will change the Venue.

T^HE defendant cannot by his plea oblige the plaintiff to lay his («) Lntw.

action in a different county from that in which he brought 1437. Co. '
it, unless the matter pleaded be local {a) ; for in transitory actions J/^-n^if f ; ^ 1.
he must move the court on affidavit (6), that if the plaintiff hath \-^^ j^ ^^l '' ^"
any cause of action, such cause accrued in the county of, 4*^. cessary, be-
and not where the plaintiff hath laid it, Sfc. and such motion cause the u!o-
must be made before issue joined (c), for by joining issue, he *'"" ^"^"
agrees with the plaintiff as to the manner of bringing the action : wasefrjivilcnt
and though the court seldom refuse on such affidavit to change to a plea in
the venue, yet if, before or after the motion made, the plaintiff abatement.
will enter into a rule to offer no evidence but what arises in the " }^ . ' .
county where he has laid his action {d), the cause will be tried there, niust state
jmsitivefy that " the cause of action (if any) arose in A. (the county to which it is prt"«vt'tl (o
*' change tiie venue) and not in 13. (the county where it is laid in the declaration) or elsc-
*• where out of A." This is the established <brni with which the courts exact a sirict com-
pliance. Cole V. Goring, Barnes, 477. Belshaw v. Porter, /6/(i. 478. 4 B^irr. 2452. Alien
V. Griffiths, 3 Term R. 495. ||And by a late rule of li. R. it must be drawn up " ou rcadin«'
" the declaration," 11 East, 275. I'Marsh. 243. 1 Chitt. R. 57. 534.|| It hath been ques-
tioned, though it is frequently done, whether the venue can properly be changed into Wales:
certain it is, from the terms of the affidavit, that it cannot be directly changed into the next
English county, though the process may be afterwards awarded into it. 4 Burr. 2452.
Dougl. 262. IJBut now since the latitat is holden to run into Wales, it has become the com-
mon practice to change the vemie from an Englisli to a Welsh county. 2 Stra. 1270. 2 Black
R. 962. 6 East, 355. li \y\ the case of a libel dispersed in several counties, the vemie cannot
be changed, because the affidavit cannot be made in the prescribed form, the |)ublication of
the libel being co-extensive with its circulation. Pinkney v. Collins, 1 TermR. 571. Clissold
V. Clissold, Id. 647. S. P. ||l Brod. & B. 299-11 B"* if the printing and publishing were both
in the same English county, or if the libel were written here, and sent abroad, there is then
only one Englisli county in which the cause of action arose. Freeman v. Norris, 3 Term R.
300. Metcalfe v. Markham, Td. 652, One only of several defendants may make the afTidavit.
Box V. Reed. Barnes, 482. Where it appears on the face of the declaration, that the cause of
action is /oc«/, no affidavit is necessary. Mayor of Leicester v. Green, Id. 492. snpra (A',
(r) It has been received afterwards, 1 Term R. 781. It may be changed after an order for
time to plead, though upon the terms of pleading issuably ; but not after an order for time to
plead, upon the terms of pleading issuably, and taking short notice of trial at the first sitti?i<»s
in London or Miildlescv^ because t/icre a trial would be lost. Petyt v. Berkley, Cowp; 510.
Himter v. Gray, Barnes, 49.3. S. P. UShipley v. Cooper, 7 Term R. 698. Wilson v. Harris,
•2 Bos. & Pull. 320. Talmash v. Penner, 3 Bos. & Pull. 12. It cannot be changed at the

F 3 instance

70 ACTIONS LOCAL AND TRANSITORY.

instance of the defendant after plea pleaded, even thoujr^ he afterwards obtain leave to with-
draw his plea, and plead it de novo with a notice of set-ofF. Palmer v. Turner, Tidd's Pr. 528.
Ed. 2.|| A judge's order for an imparlance is no bar to it. Blackstock v. Payne, Barnes, 487.
Nor is the putting in a plea after a rule to shew cause any waver of it. Herbert v. Flower,
Id. 492. (rf) Or undertake to give material evidence in the county where laid. Sid. 404.
442. [But such undertaking is indispensable.] ||Guard v. Hodge, 10 East, 32. Clarke t.
Reed, 1 N. R.310.|| [The want of it cannot be supplied by an affidavit that the cause of
action arose where laid. French v. Coppinger, 1 H. Black. R. 216. The undertaking, how-
ever, is satisfied by very slight local evidence, or by proof that the cause of action arose
abroad. Watkins v. Towers, 2 Term R. 275. Gerard v. De Roebuck, 1 H. Black R 280.]
||M'Ciare v. M'Keand, 2 Taunt. 197. The performance of it may indeed be dispensed with
where the plea and issue joined are such as to render the evidence irrelevant; for it does not
apply to collateral issues, but is confined to the matters stated in the declaration. Cockerell
V. Chamberlayne, 1 Taunt. 518. Soulsby, Assignee, &c. v. Lea, 3 Taunt. 86. If the plaintiff'
can shew that part of the cause of action arose in another county than that where originally
laid, the nde for changing it will be discharged. Cailland v. Champion, 7 Term R. 205.
Collins V. Jacob, 3 Bos. & Pull. 579. Hope v. Bennett, 2 New R. 397. But, where the cause
of action substantially arose in a county at a great distance from that in which the venue was
laid, and all the witnesses resided in that county ; the court changed the venue to it on the
defendant's agreeing to admit a fact, which in point of form arose in the original county.
Holmes V. Wainwright, 3 East, 329.|| [Evidence merely that the plaintiiTs witnesses reside
in the county where he has laid the action is not sufficient. 2 Black. R. 1031. After the
venue hath been changed, the court have refused to bring it back upon an affidavit that the
witnesses live in Scotland, and will not come farther than Carlisle. Fogoe v. Gale, 1 Wils.
162.]

2 Mod. 215. But though the court, on application, seldom refuse to change
Gilb. Hist. the venzie, yet there are cases in which the judges have refused;
i^ R° ^^ where a peer of the realm brings an action of scandalum mag-

954. 1 1* Mod. ^^°^^^* *h^ court will not change the venue, because a scandal
9. 12 Mod. raised on a peer reflects on .him through the whole kingdom.
J 21. 401. 420. Barnes, 343. 2 Stra. 807. 2 Ld. Raym, 1418. Andr. 198. Bamardist. K. B. 60.

1 Lev. 56. S.P. For the king himself is party to the suit; but in ray Lord Shaftsbury\ case,
who brought scandalum magnatum, and laid it in London, the venue was changed. Vent. 5«4.
Q Jones, 192. But note that was by reason of the great influence he had in the city ; and the
established doctrine is, that the venue cannot be changed in an action of scandtdum magnatum.

2 Salk. 668. pi. 3. 1 Vern. 439. It was refused by B. R. in Ld. Sandwich and MiUer, in
Eatter Term 1773.

Vide head of A Serjeant at law, barrister, attorney, or other privileged
Privilege. 2 person, whose attendance is necessary at Westminsta-'hall, may
f^o^'Yg^^'^' ]^y ^^^ action in Middlesex, though the cause of action accrued
2 Show. R. ^^ another county; and the court, on the usual affidavit, will not
176. pi. 172. change the venue.

242^. pi. 239. S. p. Though the plaintiff*, who was a barrister, had discontinued his practice
for some time before. [But Quare of this ? On motion by Mr. Spelman to re-change the
^ffi"r^ .*° ^Jiddlesex on the ground of his being a barrister, the court obliged him to make
* ni^^v p **' ^^' ^P^^""^" ^^^ plaintiff" and Mr. Spelman the barrister were the same person.
£ Black. R. 1067. 1 Black. R. 19, An attorney does not lose his privilege to change or
retam the venue by residing in the country. 2 Black. R. 1065.]

s^Ld'^Ra^ m ?"^' ^^ ^ privileged person be sued, and the action brought

1053! Bisse against him in the right county, his privilege will not entitle him
V. Harcourt. to have it tried in Middlesex.

S Salk. 668. pi- 1. Andr. 381. 4 Burr. 2027- 3 Term R. 573. Contr. 2 Stra. 1049. Dolben J.
remembered a cause where the venue was altered, though an attorney was plaintiff", because
the matter arose, and all the witnesses lived, in remote parts. Carth. 126. So, where the
plaintiff was an attorney, but had not declared in person, but by N. C. his attorney. Barnes,
479. bo, where plaintiff" sued defendant by capias, and not by attachment of privilege. Pract.
n^' ^ r,' '^l?* ^5P- * ^^** P""**^'- C. p. 132. So. where he sued by original. Barnes, 484.
Rep. & Cai. Pract. C. P. I4fi. Pract. Reg. C. P. 420.

nAnd

(B^ In ivJiai Case^ tJie Court 'will cluinge lite Venue. 71

g And if the privileged person lay his venue in London, or any 2 9alk. 668.
other county than Middlesex, he has no privilege to retain it. "^ Taunt. 146.

And the privilege does not extend to actions by an attorney Tidd. 6O8.
in aider droit.\\ (^'^ ^^')

So, if an attorney lays his action in London, the court will Vent. 47. Cas.
change the venue on the usual affidavit ; for by not laying it in Temp. Holt,

Middlesex (a), he seems regardless of his privilege, and is to be J\^V^ 1

.J ,^ '' p r t) » (a) In order

considered as a person at large. to prove the

venue was not laid in Middlesex, a copy of the declaration was produced, by which it was
said, it appeared the venzie was laid in London ; but the court said an affidavit ought to be
annexed, that it may appear to be a true copy, and that they did not require this affidavit but
in the case of an attorney.

II The venue will not be changed to any of the four northern 3 Black. Com.

counties, previously to the spring circuit, because the assizes there ^^'** ^ j

are nolden only once a-year at the tune 01 the summer circuit. ^^^ p '

Nor will it be changed into a county palatine but on the praddely and
terms of not assigning error on the want of an original ; and others v. Rip-
therefore, in C. B., one of several defendants cannot be per- pon, 5 Taunt,
mitted to remove it thither, because it is not competent to the ^ T:, ' .^"^^^*^
court in that case to lay the other defendants under those terms. |j ^^^ "7 Taunt.

466. 4Maul. &S. 235.

If material evidence may be given in two counties, the plaintiff ^ g^^ij, gg^
may elect to bring his action in which he pleases ; as, if A. draws pi, 4. Comb.
a bill of exchange in Bristol, payable in London, the action 84. Lutw. 21s.
accrues by the refusal to pay the money in London, and there- "^ ^°- ^"'"
fore the plaintiff not obliged to change the venue. fioEa^t 34

The like law in penal actions. 2 Term R. 238.]

II So, where the venue had been changed by the defendant 2 Barn. & A.
from London to Staffordshire, on the usual affidavit that the ^'8* 1 Chitt,
cause of action arose in the latter county, and not elsewhere, the ' ** '
Court of King's Bench would not bring it back to London on an
affidavit that the^cause of action arose partly in Staffordshire and
partly in Worcestershire, and on the plaintiff's undertaking to
give material evidence in one or other of those counties, par-
ticularly as no special facts were stated to shew that the defend-
ant's affidavit was not correct. And mere hardship and delay in
being obliged to try a cause at Lancaster, when all the plaintifi''s
witnesses reside in London, is no ground for bringing back the !^q, "
venue to the latter place, unless the defendant be under terms
to take short notice of trial in London, and has undertaken not
to assign for error the want of an original writ.U

So, where an assumpsit was brought for goods sold and de- Vent, 344*
livered, and the action laid in London, and a motion was made
to change the vemie upon affidavit that the sale was in Kent -, but
it appearing that the delivery was in London, the court held that
where the matter consists of two parts in several counties, the
plaintiff shall have his election.

So, an action against a lighterman for not delivering goods 2 Salk. 670.
was laid in London, whither they were to be carried; it was jjl'/couKc'to
moved to change the venue, because the damages and neglect change the
were in Kent. Sed non allocatur ; for the neglect is transitory, venue ia aa

F i and

ACTIONS LOCAL AND TRANSITORY.

action of
escape; •per
Holt C. J,

10 East, 52.;
and see
2Chitt.R.417.

Ibid,

aiid not material where it was ; and the court will never change
a venue for a carrier, which is the same case.

II The venue may be changed in an action of crim. con. on the
usual affidavit.

So in an action of assault.

6 Taunt. 754. "^^ ^^ ^® ^' ^' ^" ^ penal action.
Scd vide 1 Sid. 287.

4 Taunt. 729. So, in case for overturning the plaintiff in a stage coach, it
may be changed to the county where the accident happened. 1|
[But where the cause of action arises in two counties, the

Shirley v. Col-
lis, 2 6lack. R.
940.

2 Mod. 228.
That the
court will not
change the
venue in an

court will not change it to a third.]

If the action be grounded on a specialty, the court will not
change the venue ; for not being dated at any particular place, it
may be presumed to be omitted, that it may charge the defendant
at any place.

action of covenant. Lev. 307. ||See 2 Chitt. 419. 1 M'Clel. & Y. 212. Nor in assumpsit on

an award. 2 Bos. & Pull. 353. 3 Barn. «& C. 9. 1 1. Or charter-party of affreightment. 7 Taunt.

306. 1 Moo. 54. Sed vide. 4 Bing. 39. Unless some special ground be laid. See Tidd. 604.

(9th edit.)|j

[Nor will they change the venue in debt for rent on a parol
demise of lands in one county, and the action laid in another.

166.

But where an action of debt for rent by the lessor against the
original lessee was brought in London^ and the lands lay in
Gloucestershire; on affidavit made that the defendant would
plead a special plea, whereby the title of the estate would come
in question, the court ordered the venue to be changed into
Glouccstersh ire.

Duplessis r.
Chalk, Stra.
878. Fitzgib
Meritt's case,
1 Freom. 260.

Foster v. Tay-
lor, \ Term R.
781.

8 East, 268. ;
but see
2 Chitt. R.
419.

Watt t.
Daniel, 1 Bos.
& Pull. 425.

Barnes, 480.

It is a general rule not to change the venue in actions upon
specialties; yet it has been done upon certain terms imposed
upon the defendant, on a suggestion that both the plaintiff's and
defendant's witnesses resided in the county to which it was
prayed it might be changed; but several similar applications
have been rejected.]

II In covenant on a lease for diverting water from the mill, a
view being proper to be had the venue was changed to the
county where the premises lay, though most of the plaintifPs
witnesses resided in the county where the venue was laid.

And in a late cat;e the Court of Common Pleas refused to
change the venue in an action on a deed to the county where
it was executed, on the ground of the defendant's witnesses
living there; it not appearing from the pleadings to be necessary
to produce many witnesses from that county, and there being
reason to suppose that a fair trial could not be had there. 1|

[The Court of Common Pleas refuse to change the vetiue in an

485. 485. 487. action on a bill of exchange or promissory note (a), where the
sBIaok.R. cause of action is confined to the bill or note only; but the

practice

ACTIONS QUI TAM. JS

practice of the Court of King's Bench in this respect seems to be ,„.,

different. (6) ^ _ 4i.*SayR. 7.

Andr. 63. HThey have however done it where the defendant's affidavit disclosed the number
of witnesses, and shewed that a serious inconvenience would arise from bringing them into the
county where the venue was laid : a mere statement that all the defendant's witnesses live in
the county to which it is moved to change it will not suffice. Evans v. Weaver, 1 Bos, &
Pull. 20. And where a view was necessary, they have done it, though most of the plaintiff's
witnesses resided in the county where the venue was laid. Hodinott v. Cox, 8 East, 267.H
(a) They consider these in the nature of specialties. \\{b) It should seem to be the same where
the note is not negotiable, Orme v. Almay, cited in 2 Bos. & Pull. 5.95. And the practice of
the Court of King's Bench seems now to be the same. See Tidd. 604. (9th edit.) ; and 2 Chitt.
R. 418.11

II It would seem that the courts will neither change the venue Whitburn v,
in an action on an award, even though the declaration contains ^^p^il'^R^^'
the common counts, nor oblige the plaintiff to undertake to
confine his evidence to the count upon the award, |1

[Though the plaintiff cannot regularly move to change the Stroud v.
venue, yet he may do it in effect by moving to amend, and striking | "v' }^^:.
out the name of the one county, and inserting that of the other ; ^ Hallet
and as he may make this motion at any time, therefore where the 1 Wils. 175.
7)emie has been changed by the defendant, the court will permit Bruckshaw v.
him at any time to hrhm it back on the usual undertaking.] Hopkms,

•^ » ^ -^ Cowp. 409.

ACTIONS QUI TAM.

A CTIONS qui tarn are (a) such as are given by acts of parlia- 3 Black. Com.
ment, which impose a penalty, and create a forfeiture for I60. (a) It is
the neglect of some duty, or commission of some crime, to be called some-
recovered by action or information, at the suit of him who pro- actixm^'when^'^
secutes as well in the king's name as in his own. As most penal the penalty, or
statutes direct, that the penalty may be recovered by action or part of it, is

information, we will consider both matters together, and there- S^^en to anv
r 1 II 1 one who will

fore we shall shew, sue for the

same. In these actions or informations, the party who prosecutes has, by commencing his suit,
such an interest in the penalty, that the king cannot discharge or suspend the suit, as to the
part the plaintiff is entitled to. Vide 2 Hawk. P. C. 592. and head of Prerogative. [Penal
actions, though the judgment may in some cases be followed by legal disabilities, are considered
as civil proceedings. 1 hey are founded upon the implied contract which every one is under
by the fundamental constitution of government, to obey the directions of the legislature,
and to pay the forfeiture incurred by his disobedience to such persons as the. law recjuires.
3 Black. Com. 15P. Therefore the affirmation of a Quaker is admissible in them; Cowp.
382. and a new trial may be had after a verdict for the defendant. Wilson v, Rastall, 4 Term
R. 753.]

(A) In what Cases they lie.

(B) What ought to be the Form of them.

^C) In what Courts they may be brought, and where
laid.

(D) Of

74 ACTIONS QUI TAM.

(D) Of the Proceedings and Pleadings in such Actions
or Informations. '

(E) Of the Judgment on such Actions or Inform-
tions.

(F) In what Cases there shall be Costs.

(G) Whether the Penalty of a Penal Statute may be
compounded or granted over.

Within what time the prosecution must be on a penal statute,
vide head of " Limitation of Actions."

(A) In what Cases they lie.

Co Ent. 375. W/^HEREVER a statute prohibits a thing, as being an imme-
Lutw. 133. diate offence against the public good in genera], under a

138. Dyer, 95. certain penalty, and the penalty, or part of it, is {b) given to him
lh\\K^ '^h^' ^^^ ^^^^ ^^^^ ^^' ^'' ^"y person may bring such action or inform-
out such pe- ation, and lay his demand tain jpro domino rege quam pro seipso.
nalty be given, no private person can sue, for the whole penalty goes to the king. 2 And. 127.
2 Jones, 234. 2 Hawk. P, C. 377. [It hath been deterniinod, however, that where an informer
entitled to no part of the penalty, sues for the king and himself, the information is not void,
but the whole shall be adjudged to the king. Parker, 105. Hardr. 185. But an act which

fives a remedy only to the party grieved, is not to be considered as a penal act ; Cas. Temp,
lardw. 412. Andr. 1 1 5. S. C. Vin. Abr. tit. Robbery (U), p. 2. S. C. 2 Term R. 148. for the
king cannot discharge it, or proceed in it after the death of the party. Wood's Inst. 535.]

Vide 2 Hawk. go, where a statute prohibits or commands a thing, the doing
aC Vs' ^^ omission whereof is both an immediate damage to the party,
and also highly concerns the good of the public, the honour of
the king, ^c. the party grieved may, and, as some say, ought to
bring his action on such statute tarn pro domino rege quam pro
seipso. especially if the king be entitled to a fine.

(B) What ought to be the Form of them.

Plow 79. * ' y^ ^^ agreed, that an action or information on a public statute

4 Co. 48. Cro. need not recite the statute on which it is grounded ; whether

Eliz. 236. the offence be such only because prohibited, or be an evil in its

Cro. Car. 229. ^^^ nature; and whether it be prohibited by more than one sta-

Show. 537. ^"^^> ^^ by one only ; for the judges are bound ex officio to take

2 Hawk. P.C. notice of all public statutes.

C. 25. § 100.

For this vide But, if the prosecutor take upon him to recite the statute, and

^^^ & loi "^^^^'"'^lly vai'y from a substantial part thereof (ff), this is fatal,

H(a) Not being because it does not judicially appear to the court that there is such

bound to re- a foundation for the prosecution, as that whereon it is expressly

cite the sta- grounded.

lute, a literal

variance will be fatal. Dougl. 97. Sed vide 9 G* 4. c. 15. and tit. Pleas and Pleading (B).!|

But,

(B) What ought to be tlie Form of tliem.

7.5

C. 26. § 20.
(fl) The usual
It is the safest

Vide Hawk.
P.C. C. 26.

But, if an information contain several offences against a statute, Cro. Jac 104.
and be well laid as to some, and defective as to others, the informer ^^^' ^'"°* ^ '
may have judgment for v^^hat is well laid ; as, where the words of
the statute are fully pursued in the description of some of the
offences, and not of others ; or, where the time is in part certain,
and in part uncertain.

Also, an action or information qui tarn need not conclude contra 2 Hawk. P. C.
pacem^ or m conteviptum domini regis ; as an indictment must. c. 26. § is.

He who brings an action on a penal statute, which gives one Jones, 26i.
moiety of the forfeiture to the king, and the other to the informer, Cro. Car. 256.
may either have a writ against the defendant quod reddat domino Plow. 77.
regi e/ A. B. qui tarn, Sfc. quas eis debet," or quod reddat A. B. qui ^J^^^ ^ '
tarn, Sfc, quas ei debet ; and in either case the writ is well pursued Dal. 66.
by a declaration in the name of the plaintiff only.

But it seems doubtful whether there be any necessity that QbioEre^ Vide
either the writ or count, in any such action, do express that it 2 Hawk. P.C.
is brought by or for the king as well as the party, (a)

form of declaring is, that the party sues 'as well for the king as for himself,
method, and perhaps is necessary.

But it seems agreed, that every information must be in this
form, viz. that the informer tam po domino rege quam pro seipso . , ,

sequitu?; even where it is brought upon a statute which gives one other autho-
third of the penalty to a third person. But there is great variety rities there
in the form of such informations in other respects ; for sometimes cited,
they say, that the action accrues to the informer, to demand the
forfeiture for the king and himself; sometimes that it accrues to
the king and to the informer ; sometimes that it accrues to the
king and to the informer and to J. S. viz. where it is divided into
three parts ; sometimes they have no clause at all of this kind ;
sometimes a process is prayed to bring in the defendant to answer
the informer ; sometimes to answer as well the king as the in-
former ; and sometimes to answer concerning the premises, with-
out saying to whom.

Such information may demand what is due to the informer, 2 Hawk. P. C.
without mentioning what is due to the king. Also, if the quan- ^- 26. § 20.
tum depend on what shall be found by the jury, a blank (A) may thi blank'* i?
be left for the sum ; but if it demand more or less for the party it would not
than his due (c), it is insufficient as to him ; but even in such case be bad ?

it may be sufficient as to the king's share. (^) !^°^- ^'^^•

° Bull. Ni.

Pri. 196.

If the action be popular, i, e. such as any person may bring, Bro. Action
it may conclude ad grave damnumt without adding, of the plaintiff; ^^P"'^' ^'
because every offence, for which such action is brought, is sup- ^ 26 21 ^ ^
posed to be a general grievance to every body.

It is said that the fact is sufficiently alleged after a qjiod aim
in an action on a statute, but not in an information, (d)

rule will hold universally ? And if it must rather depend on the particular circumstances of
each case ? ||See Carth. 216. Pleas arid Pleading (B).||

Where the penalty is given for continuing such a practice for Lutw. I62.

a cer-

Show. 337.
{d)Qu. If this

ACTIONS QUI TAM.

(a) The King V. a certain time, or for not doing such an act within such a time,

1 aylor, Lent ^^^ information must be very particular in bringing the offence
assizes for ... , . ., , .•'v'^ " o

Stirry 1776. withm the time prescribed, (a)

before Mr. J, Blachlone, an information aaainst the defendant for following the business of a
tanner, not having served an apprenticeship. The evidence did not specify the time as laid
in the information ; and the prosecutor having closed his case, the judge refused to let him
supply the defect; it being a prosecution that was not to be encouraged; and directed the jury
to acquit the defendant.

2 Hawk. P. C. By the 18 Eliz. cap. 5. (b) None shall pursue against any
c.26. $22. person- on a pejial statute^ but by 'way of information^ or original

action^ except where the penalty is limited to a certain person^ &c. ;
yet popular actions in the King's Bench or Exchequer seem not
within the meaning of this statute ; for it doth not restrain the
suit to original writs, but only to original actions, and such
actions by bill are properly original ones in the courts in which
they are commenced ; and therefore it seems a reasonable con-
struction, that the meaning of the statute was only to restrain
suits commenced in inferior courts, and afterwards removed into
superior.

{hi) Made per-
petual by
27 Eliz. c. 10
and 51 Eliz.
€.5. [The
latter cases
support this
doctrine.
See Leigh
V. Kent,
3 Term R.
565. n. a.]

51 Eliz. c. 5.
§2.

Com. Dig. tit.
Action (N),
B. N. P. 195.

3 Term R.
3.58. 2 Bos. &
Pull. 581.

4 East, 385. 9

Whitehead
V. Wynn,

5 M. & S. 427.

Bun. 23C.
261. Parker,
182. 5 Anst.
871.

21 Ja. I. C.4.

|[T>Y 31 Eliz. c. 5. §2. in any declaration or information tlie
offence against any penal statute shall not be laid to be
done in any other county but where the contract or other matter
alleged to be the offence was in truth done ; and every defendant
in such action or information may traverse and allege that the
offence was not committed in the county where it is alleged,
which being tried for the defendant, or if the plaintiff be there-
upon nonsuit, then the plaintiff shall be barred in that action or
information.

This statute is still in force, and is held to extend to all actions
or informations brought by common informers upon penal sta-
tutes, 'whether made before or after 31 Eliz. And hence the
venue in all such actions and informations must be laid in the
county where the offence was committed.
East, 296. 5 Taunt. 754. 3 Maul. & S. 429.

This statute extends to offences of omission as well as com-
mission.

There is an exception, however, in the statute that it shall
not extend to any such officers of record as had in respect of
their offices theretofore lawfully used to exhibit informations
and sue upon penal laws, which exception extends to inform-
ations by the Attorney-General in the Court of Exchequer. ||

By the statute 21 Ja. 1. cap. 4. all offences against penal sta-
tutes, for which any common informer may ground any popular
action, bill, plaint, suit, or information, before justices of assize,
or nisi prius^ or of general gaol-delivery, or of oyer^ Sfc. or of
peace, Sfc. (except offences concerning recusancy or mainte-
nance,

nance, or the king's customs, or transporting gold, or silver, or
munition, or wool, or leather, Sic) shall be commenced, sued, pro-
secuted, tried, recovered, and determined by way of action, plaint,
bill, information, or indictment, before the justices of assize, of
nisiprms, of oj/«-, SfC. or of gaol-delivery, or before justices of
peace, of every county, city, borough or town corporate, or
liberty, having power to enquire of, hear, and determine the same,
within this realm of England and dominion of Wales, wherein
such offences shall be committed, in any of the courts, places of
judicature, or liberties aforesaid respectively, only at the choice
of the parties which shall commence suit or prosecute for the
same, and not elsewhere, save only in the said counties or places
usual for those counties, or any of them ; and the like process
in every poj)ular action, bill, plaint, information, or suit, shall
be as in actions of trespass vl et armis at common law ; and all
informations, actions, bills, plaints, and suits whatsoever, either
by the attorney-general, or by any other officer whatsoever, in
any of the courts of Westminster, for or concerning any the
offences aforesaid, shall be void.

And in all suits on penal statutes, the offence shall be laid in
the county where it was in truth committed; and if, on the
general issue, the offence be not proved in the same county in
which it is laid, the defendant shall be found not guilty.

And no officer shall receive, file, or enter of record, any
information, bill, plaint, count, or declaration, on the said sta-
tutes, which by this act are appointed to be heard and deter- ,
mined in their proper counties, till the informer or relator hath wThissec-
laken an oath before a judge of the court, that the offence was statute seems
not committed in any other county than where, by the inform- now to be dis-
alion, Sj-c. the same is supposed to have been committed, S^-c. the re<;arded. Sea
same oath to be there entered of record. («) tnjra.

In the construction of this statute it hath been holden, that no 2 Hawk. P. C.
action of debt or information, or other suit whatever (6), can be '^•^e. §54.
brought on any penal statute made before 21 Jac. 1. in any of the '^^) f^f'^V^'^^,^'
courts 01 Westminster-kall, tor an oiience not excepted by the 4(55. 5 Mod.
statute, and for which the offender may be prosecuted in the 425. 2 Lev.
country (c), unless such offence shall be committed in the same 204. 5 Inst,
county in which such court shall sit. And as to the objection, that ^^^; v^'L,"?,
by this restraint or suits on penal statutes to the said courts, tlie Lev. 249.
offence would become dispunishable by the offender's removing 5 Lev. 71.
from the county ; it may be (^/) answered, that he may be sued 2Keb.4oi.
to an outlawry in the same manner as in an action of trespass. ^^q' ^^^ "^P^;

Vent. 304. 2 Lev. 204. Latch. 192. Sid. 359. Ld. Raym. 370. Stra. 413. Wille'sR.654,
(«5j Jon. 193. {d) Salk. 573. pi. 24. Salk. 372. pi. 13.

IjThat the statute does not extend to offences created by j g.^2|^ ^^^
subsequent statutes. Bull. N. P.

195. 3 Maul & S. 458.

Neither this statute nor the 31 Eliz. c. 5. extends to actions by i Show. 354.
tlie party grieved. || ^"^'' ^- P*

That where a subsequent statute gives an action of debt, or ^wt per Holly

anv

78 ACTIONS QUI TAM.

it conies any other remedy, for the recovery of a penalty in any court of.

within the record generally, it so far implietlly repeals the restraint of
^['•"tute" ^ ^^ ^^'^' ^•' ^"^' consequently, leaves the informer at his liberty
[(a) The king to sue in the courts of IVestminster-hall. (a)
V. Gaul.

1 Salk. 375. Ld. Ra)ma. 370. S. C. Hick's case. 1 Salk. 373, But this was merely the
private opinion oi Holt ; and the cases here referred to have been confirmed by a subsequent
case of Harris v. Reyney, B. R.P. 1734, cited in Parker, 186.; .and the reason of the judg-
ment, as there stated, is, that the preamble speaks of offences against divers and sundry penal
laws and statutes of the reahn ; and the enacting clause of or concerning offences committed
or to be committed against any penal statute, must relate to a statute in being, for there
can be no offence against a statute which does not exist. However, the offence must be laid
within the proper county. I Salk. 573.]

Cro. Car. 119. That the statute gives no jurisdiction to the courts therein
Lit. Rep. 163. mentioned over any offences in relation to which they had none
Hut. 98. Vent, before ; and, therefore, that suits for such offences must be

?,\^ .'"•^\^'" brought into the courts oi' fVesttninster in the same manner as
(b) It IS only , r /j:\

where there is before. (6)

a concurrency of jurisdiction in the superior and inferior courts, both as to the subject viatler^
and as to the mode of proceeding, that the statute excludes the jurisdiction of the former.
Therefore a suit may be maintained in the courts at Westminster for the recovery of penalties
incurred against the statute of 1 Jac. 1. c. 22. notwithstanding a subsequent clause of that
statute, which authorizes justices of assize, of gaol-delivery, and of the peace, to enquire of the
premises, and to hear and determine the same ; the mode of proceeding under that clause
being merely by indictment or presentment. Shipman v. Henbest, 4 Term R. 109.] iJSee

1 Will. Saund, 312. a. b.jl

Keb. 106. That the statute hinders not the removal of any cause into

Jones, 195. j.j^g King's Bench by certiorarL after which it may be either tried, -l

2 Hawk. P.C. ^, • ^u 4. u • • • / \ \
c 26. §57. there or in the county by mstprius. (c) •'

Rex. V. Martel. Bull. Ni. Pri. 196. 4th edit, (c) [It is now settled, though formerly doubted,
that an appeal lies from the King's Bench to the Exchequer Chamber in a qui tarn action of
debt. This question was determined by the Exchequer Chamber, the courts of King's Bench
and Chancery having previously refused to entertain it. Lloyd v. Skutt. Dougl. 553. n.]

2 Andr. 127. Also, where a statute limits suits by an informer qui tarn to

2 H k P^ C ^^^^^' courts, yet any one may, by construction of law, exhibit
c. 26. §25. * ^" information in the Exchequer for the whole penalty for the
Parker, 182. use of the king.

Cro. Car. 316. That on the last clause of the statute it cannot be assigned
vide 4 Inst. for error, that an information, S^c. was filed without such pre- :
193 B t^' vious oath as the statute requires, for it was only directory to the
qu(^re Whe- officer, [d)

ther for want of such an oath, the court will not, on motion, set aside the process. Salk. 367.
pi. 19. Ld. Raym. 426. Carth. 503. [(rf) This oath is not necessary where the action is in
the superior courts, the statute not extending to any actions which may be brought in those
courts. Leigh qui tarn v. Kent, 3 Term R. 562. Balls qui tarn v. Atwood, 1 H. Black R. 546.]

Show. 354. That no suit by a party grieved is within the restraint of the

statute.
Gates qui tarn [Where an offence is created by a statute under a penalty, the
v.^night,^^^ penalty may be sued for in the superior courts; for the jurisdic-
tion of those courts is not to be taken away but by express words
or necessary implication. But the statute of 25 G. 3. c. 51.
having imposed penalties of 50/. and of 10/. and having enacted
that the former should be sued for in any of the courts of West-
minster, but having provided that it should be lawful for justices

3 Term R. 442.

(D) Proceedings and Pleadings in such Actions^ cj-c, 79

of the peace, S^e. to hear and determine the latter, with a power
to mitigate the penalties ; it was holden, that such proviso
ousted the jurisdiction of the superior courts as to the penalties
of 10/.]

(D) Of the Proceedings and Pleadings in such Actions
and Informations.

"OY the 18 EHz. c. 5. every informer on any penal statute shall ig Eliz. c. 5.
exhibit his suit in proper person, and pursue the same either 2 Hawk. P. C.

by himself, or by his attorney in court, and shall not use any E"^?;,^^"l'
•\ ^ I \ [(«) rherefore

deputy, (a) aa infant can-

not be a common informer, for he must sue by guardian ; Maggs v. Ellis, M. 25 G. 2. Bull.
Ni. Pri. 196. (4th edit.) and he cannot be an attorney, because he must be sworn. March 92.J

Any infoi'mer qui tarn {b), or plaintiff in a popular action (c), ny. ^^ j j^j
may be nonsuit, and thereby determine the suit, as to himself 139. Bro.
at least ; and though the king cannot be nonsuit, the attorney- Nonsuit, 68.
general may enter a nolle proseqtii to an information by the king (^) """o- ^^n-

only. Sid. 420. Salk.

21. pi. 11. [Moulton qui tarn v. Bingham. 2 Term R. 51 1. n. a. But the act of 14 G. 2. c. 17.
for judgment as in case of a nonsuit, does not extend to an information qui tarn for the king
and partV" Parker, 92.] |[It extends to qui tarn actions as well as others. Barnes, 315.
1 Wils. 325. 7 Term R. 178. 1 East, 554.1|

[Where the moiety of a penalty is given by a statute to the 4 Term R.
treasurer of a county, riding, or division, the word division does K.B. 224.459.
not apply to any small districts, or to any arbitrary divisions of /t

the county made for the convenience of the magistrates, and to *^

which separate treasurers are appointed, but must be taken in
its legal sense, and therefore an action cannot be supported in
the name of the treasurer of such districts, Sfc.']

By the 29 Eliz. c. 5. and 31 Eliz. c. 10. if any natural-born 29 Eliz. c. 5.
subject or denizen, shall be sued on any penal law in the Queeris ^"'^ ^^ ^''**
Bench, Common Pleas, or the Exchequer, where he is bailable, or ^' ^°'
by form of the court may appear by attorney, in every such case
he may, at the time contained in the first process, appear by
attorney, and not be urged to personal appearance, or to put in
bail.

If the defendant plead a special plea, he must take care to set Roll. Ren. 49.

it forth with all convenient certainty, and to answer the whole 134. Bridg.

time laid in the information ; and if he plead the general issue, * ' ^- that he

he must depend upon it, for he cannot plead together with it a f?""°* ^^S^

• ii»« ^ nis Itiw or t(iK6

special plea, either to the whole, or to part of the charge, {a) advantaoe of

a protection 2 Hawk. P. C. 390. [(d) The stat. 4 Ann. c. 16. does not extend to penal actions ;
see § 7. 2 Stra. 1044. 2 Wils. 21. 4 Term R. K. B. 701. |ll Bos. & Pull. 222. || A qui tam
information cannot be quashed upon motion. Stra. 953.]

If the defendant plead nil debet, it is safest to say expressly Co. Ent. 165.
that he owes nothing to the informer, nor to the king ; for if he ^°'^' ^^J*
only plead that he owes nothing to the informer, it may be g Lev. 375.
objected that the whole declaration is not answered. Vide Cro.

Car. 10, 11.

If there be more than one defendant, they ought not to plead 2 Hawk. P.C.

80 ACTIONS QUI TAM.

jointly, that they are not guilty, but severally, that neither they

nor any of them are guihy, S,-c.
jj^jj 218 tit seems that either nil debet^ or not guilty, is a good

lTerniR.'462. plea.]
||See 5 Bos. & Pull. lll.||

2 Hawk. P. C. ^ If the suit be grounded on the breach of a statute appearing
c. 26. § 6S. ^y matter of lecord, //// debet is not a good plea.
Cro. Eliz. 261. Wherever a suit on a penal statute may be said to be {a) de-
Roll. Rep. 49- pending, it may be pleaded in bar of a subsequent prosecution,
134. Hob. 209. ijgij^g expressly averred to be for the same offence, as it may,
the sutt shall though it be laid on a day different from that in the former ; and
be said to be it is said, that a mistake in such a plea of the day whereon such
pending, vide prior suit was commenced, will not be fatal on the issue of nul
2 Hawk. P. C. ^1^^ record, if it appear in truth to have been prior, 4^c. and if
and qucBre two informations be exhibited on the same day, they may mu-
Whetherfrom tually abate one another, because there is no priority to attach
the time of the i\iq right of suit in one informer more than in the other,
purchase or

return of the writ. Salk. 89. From the time of the purchase of the writ [The day of suing
it forth is the commencement of the suit. 3 Burr. 1425. Combe v. Pitt. IJNotice of action
has been held no commencement of it. 2 Black. R. 781.|| The plea must aver the priority of
the suit, and the very hour of its commencement may be shewn, if necessary. Jackson v.
Gisling, Stra. 1169. 5 Burr. 1425.]

Bredenquiiam [The record of a recovery in another action cannot be given
V. Harman, j^j evidence on nil debet; for if it be pleaded, the plaintiflf may
Bull Ni Pri. ^^P^y ^'"^ ^^^^ record, or that the recovery was by fraud to defeat
197. (4th ed.) a real prosecutor, which he cannot be prepared to shew upon the
general issue.

If the defendant plead a prior recovery, and the plaintiff reply
11(a) This sta- per Jraudem, and such recovery be found to be fraudulent,

tute does not ^j^g defendant is liable to two years' imprisonment by 4 H. 7.

extend to _ , » •' '■ •'

cases where ^' ^^•-1 \^}

the penalty is given to the party grieved. 1 Salk. 30. 2 Hawk. P. C. 279.||

2 Roll. Abr. I^ the defendant be within the proviso of a penal statute, he may

683. Vide take advantage of such proviso on the general fssue, in a suit on
2 Hawk. P. C. such statute ; but it hath been holden (even since the statute of
c. 26. ^69. 22 j^^ ^ P^ ^ \ ^|^g|. jf j^g have matter in his discharo;e dependinc:
that he may , ' , i i • -11°' °

take advantage Oil a subsequent statute, he must plead it specially.

of it by virtue of the statute, without pleading it specially ; but as to those matters to which
the statute doth not extend, qucere. |jlf the same act that imposes the penalty contains the
proviso of exemption, it is clear this may be shewn on the general issue. 4 Burr. 2284. 2469.
And it seems the same if a subsequent act contain the exempting clause. 1 Black. 250. ; and
see 3 Camp. 222.1| [The defendant cannot avail himself under the general issue of any
matter that goes to the jurisdiction of the Court. 4 Term R. 109.]

2 Hawk. P. C. As to replications to special pleas to informations qtd tarn in the
^' ' ' courts of Westminster-hall, they are properly made in the name of

the attorney-general only; and such replications in suits at assizes
are proper in the name of the clerk of assize only : also, replica-
tions to general issues, on such informations in the King's Bench
or Exchequer, may be in the name of the attorney-general only ;
but, generally, the plaintiff only replies in actions qui tarn; and ,
a demurrer to a plea in bar to an information qui tarn in the
informer's name only has been received.

Where-

(E) Of the Judgment on such Actions or Informations ^

Wherever a plaintiff may declare tam pro domino rege quam 2 Hawk. P.C.
pro seipso, he may continue the same form of words both In the c. 26. § 73.
joining of issue and in the venire; but is not bound to do it unless ^"^ Hawkins
the king be entided to part of the penalty, (a) qulTe^Whe-

ther he be bound to do it in this case ; for there are precedents to the contrary. The usual
form in the plaintiff's replication is, " and the plaintiff ivho sues as aforesaid, doth so likewise,
" ^c." where defendant offers issue. If the plaintiff^ then, " and of this the said A. who sues
" as aforesaid, puts hiviselfon the country, Sfc."

Where several persons are jointly charged for an offence against 2 Roll. Abr.
a statute, which in its own nature may be committed by a single Ig 59 ^"^*
person, without the concurrence of any other, some of them may
be acquitted and others found guilty; for though the words of the
information be joint, yet in judgment of law the charge is several
against each defendant; but, if one only be informed against, as
having offended oftener, or, in a higher degree than is proved,
as for having been absent from church ten months, where he has
been absent but eight; or for having ingrossed 1000 quarters of
wheat, where he has ingrossed but 100; he maybe found guilty
as to what is proved, and not guilty as to the residue, for such
offences are in the nature of trespasses, which it is sufficient to
prove for any part; but, if the offence consist in making a con-
tract contrary to the purview of a statute, as in the case of usury,
it must be proved as it is laid.

[Where an offence made penal by statute is in its nature single, Rex v. Clarke,
and cannot be severed, there, the penalty shall be only single, Cowp. 610.
though several persons may join in committing the offence. But, m° 455^^^'
where the offence is in its nature several, there every offender ^oy^ 52.
is separately liable to the penalty. Thus, impounding a distress |[See Reeve r.
in a wrong place, against the statute of 1 & 2 P. & M. c. 1 2.
though done by many, is but one act, and shall be satisfied by
one forfeiture. So, under the statute 5 Ann. c. 14. killing a
hare, though several be concerned in it, is but one offence.
But the offence against the 8 Geo. 1. c. 18. § 25. of obstructing
a custom-house officer in the execution of his duty, is several;
and every offender is separately liable to the penalties which the
act imposes.]

II The plaintiff in declaring on a penal statute must expressly Spieres v. Par-
negative the exceptions or exemptions contained in the enacting ^^'"» ^ ^^"" ^*
clause which gives the penalty, and also those contained in any pratten ^^ ^'
other clause to which the enacting clause refers; but not those 6 Term R. 559.
contained in a subsequent proviso, to which the enacting clause Steel v. Smith,
does not refer, nor those contained in a subsequent statute : in ^ ^^"•
these last cases it is for the defendant to bring himself within the
exempting proviso. ||

Pool, 4 Barn.
& C. 155.|l

&A.

(E) Of the Judgment on such Actions or Inform-
ations.

^^^HERE by statute the offender is to forfeit such a sum, to Andr. 139,
be divided into three parts, whereof one shall go to the ^tile, 329.
king, one to the informer, and the other to the poor, and to be
Vol. I. G com-

Roll. Abr.
102. 2 Keb.

ACTIONS QUI TAM.

820. 2 Andr.
128. Parker,
105. Where a
statute distri>
buting one
moiety of the

committed if he do not pay it within such a time, the judgment
may be general, that the king and informer shall recover the
whole, without mentioning how it shall be distributed, or that
the party be committed for nonpayment. But, if it mention
only that the informer shall recover, without saying any thing
penalty to the of the king, it is erroneous ; yet, if on such an information, as
the^'otheir to ^^ ^^ ^^^^' informer appear to have no right to any part, but
the poor, di- the king ought to have the whole, and the judgment be, that
rects that the the defendant forfeit the whole, and that the king shall have one
informer shall part, and the informer another, Sfc. it is erroneous only as to
[udffnfent^that '^"^^ ^^^^ clause, which distributes the forfeiture, but shall stand
the informer for the first clause, that the defendant shall forfeit the whole, {a)
Also, if there be no clause at all concerning the forfeiture, in a
conviction on a penal statute, but only a judgment quod convicius
est, it is sufficient, for the forfeiture is implied.

(a) 2 Hawk. P. C. c. 26. § 76. Adjudged Mich. 3 G. 1. [Wherever the act expresses the
amount of the penalty, or leaves it to the discretion of the magistrate, there must be a
judgment of forfeiture as well as a conviction. Rex v. Hawks, Stra. 8 58. Fitzgib. 1 24. Barnard.
K. B. 212. But where the act, as 9 Ann. c. 14. says, " That the offender shall forfeit five times
" the value" &c. all the judgment the court can give is, quod convictus est, and a new action
must be brought upon that judgment for the forfeiture. In recusancy there is no other judg-
ment. Rex V. Luckup, Stra. 1048.

and the poor
shall recover
is good.
4 Burr. 2018.

4 Burr. 2018.
Frederick v.
Lookup, qui
tarn.

5 Term R. 448.

Willan V.

Taylor,

7 Barn. & C.

111.

2 Keb. 781.
Roll. Abr. 574.
Lutw. 200.
Vent. 133.
Salk. 206. pi.
4 cont. Moor,
65. 3 Lev. 374.
2 Inst. 288.

2 Hawk. P. C.
c. 26. § 57.
Vide the au-

[A judgment in a popular action may be affirmed as to one
part, and reversed as to the other ; as, where damages and costs
were given on 9 Ann. c. 14., it was reversed as to the damages
and costs, and affirmed as to the debt.

If the jury find a general verdict with one penalty for the
plaintifi^, and he apply it to one count, he shall not be permitted
afterwards to apply it to another count, though the former were
bad in law, and the evidence would have warranted the applica-
tion of it to any other count.]

II Where the plaintiff in an action on the 9 Ann. c. 14. §2.
recovered treble the value of money lost at play, the loser not
having sued within the time prescribed by the statute, and a
writ of error was broight by the defendant, and judgment was
affirmed without costs ; it was held, that the poor of the parish
where the offence was committed were entitled to one moiety of
the sum recovered, without deducting costs. 1|

(F) In what Cases there shall be Costs.

A N informer on a popular statute shall in no case whatsoever
have his costs, unless they be expressly given him by such
statute, for the common law gives costs in no cases; and the
statute of Gloucester gives the demandant costs only in cases
wherein he shall recover his damages, which supposes some
damage to have been done to the demandant in particular, which
cannot be said in any popular action.

But, wherever a statute gives a certain penalty to the party
grieved, he is entitled to his costs by the statute of Glaucesttr, '_
which gives the demandant his costs in all cases wherein lie

shall

(F) In what Cases tfhere sJmH be Costs, 83

shall recover his damages (a) ; for otherwise it would be in rain thoritiee

for him to sue, since in many cases the costs would exceed the '^PI^' „ -.'
^j. ^ 1 Term R. 71«

P*^nalty. lliH.BIack.lO.

7 Term R.267.|| (a)Also, wherea statute, introductive of a new law, gives a remedy in a point
not remediable at the common law, but no certain penalty, the jury may consider the costs, so
as to give damages accordingly, 2 Hawk. P. C. ibid.

By the 18 Eliz. c. 5. made perpetual by 27 Eliz. c. 10. if (A) Extends
any informer or plaintiff (Z*), on a penal statute, shall willingly onlytoacora-
I delay his suit, or discontinue, or be nonsuit, or shall have the ^d^notTcra*^*
I trial or matter passed against himself therein by verdict or judg- party grieved ;
I ment of law, he shall pay to the defendant his costs, charges, yet if a party
' and damaijes, to be assigned by the court in which the suit shall g^iered brings
I i-i. ? J 0 / \ his action, and

be attempted, ^r. (c) such action

be for any oiFcnce or wrong personal, immediately supposed to be done to the plaintiflfj or

plaintiffs; or whatsoever the nature of the action may be, if the plaintiff might have costs in

case judgment should be given for him, he shall pay them on a nonsuit, or verdict against

him, by virtue of 25 H. 8. c. 15. and 4 Jac. 1. c. 3. Vide 2 Hawk. P. C- c. 26. § 59. and the

\ authorities there cited. JlMayor of Plymouth v. Werring, Willes, 440. College of Physicians

;! v. Harrison, 9 Barn. & C. 526. acc.|| [For this reason the costs of a nonsuit were awarded to

( the defendant in an action by the party grieved, on the statute of 9 G. 1. c. 22. Greetham v.

I the Inhabitants of the Hundred of Thrale, 3 Burr. 1725. That the plaintiff is in such case

I entitled to costs, see Witham v. Hill, 2 Wills. 91. and Jackson v. the Inhabitants of Calesworth,

I 1 Term R. 71. ||6 Term R. 355. 7 Term R. 267.1| though denied by Aston J. in giving judg-

: ment in the case of Wilkinson qui tarn v. Allott, Cowp. 366.] (c) And it is no objection

■• against paying the costs, that the court had no jurisdiction of the cause, or that the statute on

I which it is grounded is discontinued. 2 Keb. 106. Vide Hutt. 35.

[There is a proviso in this act, that it shall not extend to any 2 Ld. Raym.

■ officers who are used to exhibit informations; but it must appear l^-^V, •}.

on record that they are such officers, else they will be considered 117'xerm R.*

as common informers, and affidavits to the contrary will not be 367.||

admitted.

If a prosecutor qui tarn for killing game does not reply, Law qui tarn

defendant shall have costs, for this statute extends to informers T'wn"^}L*~
1 X , , T 1 Wills. 177,

on penal statutes.] Hit extends to

subsequent statutes. Willes, 392. 440.||
II It does not extend to give costs to one of several defendants, 1 Carr. & P.

who has been acquitted where a verdict has been given against ^^^' '**^*

his co-defendants. II

[A prosecutor not going on to trial shall pay costs. Cas. Temp.

3 Burr. 1304.
In an action qui tarn on the 5 Eliz. c. 4-. the plaintiff shall pay „. .

^^^^^' V.Stevens,

Ld. Raym. 1333. Jeynes qui tarn v. Stephenson, Barnes, 124.

I Where there is any reason to suspect that the defendant may Parker qui tain

. lose his costs, if the plaintiff should fail in the suit, he will be I'r^^^'u^^l^'

5 permitted to pay the issue money into court to abide the event, pjgjj ^^^ "^^^^ '

5 Whether the plaintiff can in such case be compelled to give v.Carran,2H.

^ security for the costs, is a point not yet settled, there being a Black. 27. Ficfe

j difference of opinion in this respect between the courts of West- f**; /^.f *' ,

yl minster-hall: the Courts of Common Pleas and Exchequer S.'i'g"

r^ holding the negative, whilst the affirmative is maintained by die (9th edit.)||

^j Court of King's Bench.

nl G 2 The

English qui
tain V. Cox,
Ck)wp. 522.

ACTIONS QUI TAM.

The courts have refused to stay proceedings in an action for
usury, till the costs of a nonpros in a former action by a diifereiit
plaintiff against the same defendant were paid.]

II See the next head (G).||

isEliz. c. 5.
(a) Extends
only to com-
mon infor-
mers. [But it
extends
equally to
those who sue
for the whole
penalty, as to
qui tarn infor-
mers. Cowp.
3G6.] 2 Hawk.
P. C. c. 26.
§ 77. {b) Ex-
tends as well
to subsequent
penal statutes
as to those
which were in being when it was made,

4 H. 7. c. 20.

(G) Whether the Penalty of a Penal Statute may be
compounded or granted over.

"DY the 18 Eliz. c. 5. no informer or plaintiff shall compound
or agree with any that shall offeuil(^), or sliall be surmised
to offend against any penal statute (i), for such offence com-
mitted, or pretended to be committed, but after answer made in
court to the suit, nor after answer, but by consent of the court
in which the information or suit shall be depending; on pain,
that whoever shall offend contrary to the true intent of this
statute, or shall by colour or pretence of process, or without
process, on colour of any offence against any penal law, make
any composition, or take any money, reward, or promise of
reward, for himself, or to the use of any other, without consent
of some of his majesty's courts at Westminster^ and shall be
thereof convict, shall stand in the pillory, S,-c. by the space of
two hours, and shall be disabled to sue on any popular or penal
statute, and shall forfeit 10/. S^c.

Hutt. 35. Also, it extends to the compounding of
suits commenced in courts which have no jurisdiction, as much as if they had a jurisdiction.
K^b. 106. Sid. 311.

II By 4 Hen. 7. c. 20. actions popular prosecuted by collusion
shall be no bar to those which are prosecuted with good faith,
and the defendant being lawfully condemned or attainted of covin
or collusion shall suffer imprisonment for two years. 1|

By the 21 Jac. 1. c. 3. it is declared, That all monopolies, and
all commissions, grants, licences, charters, or letters patent, of or
for the sole buying, selling, Sfc. or of any other monopolie:;, or
of power, liberty, or faculty, to dispense with, or to give licence
or toleration to do any thing against the tenor or purport of any
law, or to give or make any warrant for any such dispensation,
SfC. or to agree or compound for any forfeitures limited by any
statute; or of any grant or promise of the benefit of any such
forfeiture, before judgment thereupon, and all proclamations, Sfc.
tending to the furtherance of the same, are contrary to law, and
void : And it is enacted, That monopolies, and all such commis-
sions, S,-c. shall be examined, heard, tried, and determined by,
and according to the common laws of this realm, and not other-
wise ; hut it is provided that this act shall not extend (c) to any
warrant or privy seal from the king to the justices of either
bench, or the Exchequer, or of assize, or of oye7' or terminer and
gaol- delivery, or peace, or other justices having power to hear
and determine offences against any penal statute, to compound
for the forfeitures of any penal statutes depending in suit before

thern,

21 Jac. 1. c.3.
That this sta-
tute is in af-
firmance of
the common
law, vide
2 Hawk. P. C.
C. 26. § 80.
(r) Such jus-
tices by such
warrant can
make such
composition
for tne use of
the king only ;
per Ld. Coke,
."Inst. 178.
Bat by the
18 Eliz. supra,
they may give
leave to an
informer to
compound
with a defend-

(G) Whether the Fenalty may he compounded, <J'C.

tliem, after plea pleaded: Also it is further pr&oided. That the ant after plea
said act shall not extend to any grants, S)X. that had been granted P'^^Jed,
concerning the licensing of taverns, or selling, uttering, or ^ og Sgl [ft
retaihng wines to be spent in the house of the party selling is the rule'of
the same, or concerning the making of compositions for such the Court of

licences, so as the benefit thereof be reserved to the use of the -^'"g's Bench, 1
1 • o that where

Kmg, CfC. ^ ^ ^ they give leave

to compound, the king's half of the composition shall be paid into the hands of the master of
the crown office for the use of his majesty. 4 Burr. 1 929. The giving leave to compound is
discretional in the courts. I Stra. 167. 1 Wils. 79. 130. It hath been given after verdict for
the plaintiff". 5 Term R. 98.] ||In a later case, however, the Court of C. P. seemed to doubt
their power to give leave after verdict without the consent of the attorney-general. In all
events, they said, it was not a matter of course; circumstances must be laid before them to
satisfy them that the defendant was entitled to such an indulgence. 1 Bos. & Puil. 18.j| [If a
defendant obtain a rule to stay proceedings upon payment of a sum agreed upon between
him and the plaintiff, the court will enforce the payment of that sum by attachment.
5 Term R. 257.]

JIThe application for leave to compound a penal action must i Chitt.R.Jsi.
be made to the court in bank, and not at AVs/ Prius on the trial
of the cause.

In one case vv'here the defendant was in execution, the Court iStra. 167.
of King's Bench, on an affidavit of his poverty, gave the plaintiff
leave to compound with him.

But in the C. B. where part of the penalty goes to the king, i Taunt. 105.
the consent of the crown must be obtained before the motion for "^ i'aunt- 268.
leave to compound can be granted, whether a verdict has passed
for the plaintiff or not.

It is discretionary in the courts to give or withhold leave ; and Tidd, 557
they refused it in an action on the 25 G. 2. c. 36. for keeping a
disorderly house.

(9th edit.)
2 Black. R.
1157.; and see
2 Smith, 195.

1 Bos. & Pull.
51.

On a bonajide composition, though not on a collusive one, the
plaintiff may be allowed a reasonable sum for his costs ; and in
compounding a penal action on the post-horse act, which gives
costs to the prosecutor, the Court of Common Pleas allowed
him to receive the deficient duties not amounting to 40^., and
full costs of suit, though exceeding together the 405. paid to the
crown.

But where no costs are given to the plaintiff, as in an action 2 Taunt. 213.
on the statute of usury, the crown is entitled to a moiety of the
sum agreed to be paid to the plaintiff for his costs ; for whatever
the defendant may pay under the name of costs is considered, in
fact, as an addition to the penalty.

When leave is given to compound a qui tarn action, it is a
general rule that the king's half of the composition shall be paid
into the hands of the master of the crown office in the King's
Bench(a), or one of the prothonotaries of the Common Pleas (6),
for the use of his majesty, which is now usually done before the
rule is drawn up. And where the defendant in a qui tarn action
obtained a rule to stay proceedings on paying a sum agreed upon
between him and the plaintiff, the Court of King's Bench con-
sidered it an undertaking by him to pay that sum ; and for the

G S nonpayment

(a) R. M.
7G.5. K.B.
4 Burr. 192.0.;
and see
2 Black. R.
1154.

Black. R.
1157.

{b)2
1154.

ACTIONS ON THE CASE.

5 Dura. &
Ewt,857.

R. E. 33 G. 8.
K.B.

7 Taunt. 43.
S Marsh. 358.
8.C.

R.M. 13Jac.l
C.P.

5 Taunt 850.

nonpayment of it granted an attachment. But for preventing
any doubt in future, an order was made, that " every rule to be
drawn up for compounding any qui tarn action, do express that
the defendant doth undertake to pay the sum for which the court
has given him leave to compound such action."

So, in the Common Pleas, where a defendant, in a penal
action, obtains a rule to stay proceedings on payment of part of
the penalties, the court will grant an attachment against him for
nonpayment. And in diat court it is a rule, on compounding
informations on penal statutes, that " if the defendant, after
" composition made with the informer, do not voluntarily come
" in to answer unto the king for his fine, to be taxed and assessed
" by tlie justices of this court for his majesty's use, then a capias
" ad satisfaciendu7njinem shall be awarded against him to compel
" him thereunto; whereupon the fine being set and assessed,
" shall be presently paid in : and satisfaction being thereupon
" made, and entered by the prothonotary upon the roll of the
** said information, shall be for ever a full and final discharge of
" the defendant for the same offence."

The plaintiff, in compounding a penal action by consent,
having by mistake abandoned a good cause of action, the Court
of Conmion Pleas refused to interfere and rescind the order
made thereon. ||

ACTIONS ON THE CASE.

JT has been observed, that for every right, and for e^very
injury done a man in his person, reputation, or property, the

party hath a remedy. But this remedy he must take according
.««, «.v.. ai.- ^ ^y^ methods laid down and rules prescribed by the law ; for
tioD was never which purpose there are writs framed, and setded actions, to
brourfitbcfore; which he must apply; as debt upon a contract, trespass on a
iSsTr coming "|a";fest and open invasion of his property, S^c. But, where
■ * the law has made no provision, or, rather, where no general

action could well be framed before-hand, (the ways of injuring,

and methods of deceivmg being so various,) every person is (a)

allowed both by the common law and the st. Westm. 2. 13 E. 1.

C.24., to bnng a special action on his own case, which is a

liberal action, {b)

r^r. FiJsModl,^^^^^^ Cro.Jac.478. Roll. Abr. 108, 109. 2R0II:

o;^ the .tatSi of Jf<;,5o„' wl Y\' ^ "'• ''^r^P'' Z^'^^^^^", no action having been brought
«n uic iniuie otJUerion, it is to be presumed no act on will lie- and Pn T iff «i h ^^^ I rl

Ew mS^-^'edTor act on S^^ToTl 'e MoVf/' ^ "''f %^ thing an injury, the san.e
•dH.) (*) 2 Burrf R. ooe. 101 1^012 ' " ^^' ^^ °°*^ ^^^ *° C°- ^itt. 81. b. (I3th

These

Co. Lit. 56. a.
6 Mod. 53. 54.
(a) Nor is it
any objection
that Mich ac

to view the
huid*, to see
if any waste
waaoom-
initted, being
hindered by a
ttflUKCi from

ACTIONS ON THE CASE. 87

These actions are founded on some fraud or deceit in contracts, [They arise

or some secret iniurv to a man's right or property, and are said simply from

, „ J J oii^*/'^ tort or wron*''

to arise from a non-feasance, male-feasance, or mis-feasance. ^hgre no "'
But as this division seems too general, I shall choose the follow- breach of any
ing, as more proper to include the most material cases that fall contract is

under this head, referring to others for a more full discussion of suggested, and

, . , , .^^ 1 no forcible

several particulars relating to them. violence im-

puted to the defendant. 5 Wooddes. 167.] ||And that they lie in many cases for breaches of
duty arising out of contract, or ex quasi contractu, see Carth. 62. 2 New R. 365. 3 East, 62.
12 East, 452. 2 Marsh. 485. 3 Brod. & B. 54.1|

(A) What Persons, with respect to the Injury, may

bring an Action on the Case.

(B) Against whom such Action lies.

and herein of those Cases where a Man may be
said to suffer Damnum absque injuria,

(D) At what Time the Right of Action shall be said to

have accrued.

(E) Of Actions on the Case for Fraud and Deceit in

Contracts, on an implied or express Warranty.

(F) Of Actions on the Case for Injuries to a Man's

Person, Property, Right or Privilege : And
herein,

1. Where an Action on the Case 'will lie against Officers

and Ministers of Justice.

2. Where Case mil lie for Torts and Injuries committed

by Persons contrary to the Duty of their Trades and
Callings.

(G) Where an Action on the Case will lie for a

Nuisance, and therein of the Inconvenience of
multiplying Actions.

(H) Where an Action on the Case will lie for a Con-
spiracy, and oppressive Proceedings in Pro-
secutions and Suits at Law.

(I) Where Case will lie though the Party injured has
another Remedy.

(K) Where Case will lie though the Wrongdoer be
punishable criminally.

G 4 (A) What

gg ACTIONS ON THE CASE.

(A) What Persons, with respect to the Injury, may
bring an Action on the Case.

Bulrt. 68. T F ^. delivers goods to B. to^deliver over to C, and B. does not

Hardr.ssi. •■• deliver them over accordingly, but converts them to his own
aP. •aduid y^g^ ^jjj^gp J Qj. Q n^gy j^a^g an action against B. but both shall
thgr could not ^^^ ^^^^^ ^^ ^^^.^^^ ^^^ j^^ ^j^^^ g^.^^ ^^^^^ j^jg action shall go on

with the same.
9 Let. 909. If ^' is seised in fee of the reversion of a close, expectant

rid# « RoU. upon a term for years, and B. is possessed of another close
Abr. 55. adjoining tliereto, between which closes there runs a rivulet, and

* ^7*^ So 'if ■^* *^°P* '^ P^ ^'^^ ^'*® *^'°"^® °^ ^' ** surrounded, so that the

iTicMet »' timber-trees, <^c. become rotten, A. in respect of the prejudice

houM to B. to the reversion, and the termor, in respect of the possession,

for yfw%, and ^^^ ^^ j|^g shade, shelter, ^c. may each (a) have an action ; and

down th'rouch satisfaction given to one is no bar to the other.

the neglect of a nei<»hbour, A. may have an action for the damage to his inheritance, and B.

for that to his possession. 3 Lev. 360. But see 6 Ann. c. 31. § 6. made perpetual by 10 Ann.

c. M. §\. by which this remedy is taken away.

Provost, &c. II If the tenant, or a stranger, do a present injury to the estate

0 n"***n °^ ^'^® reversioner, the reversioner may have this action against
IbrdTlHalirt, ^»"> pending the term.||

14 East, 489. Ipackson v. Pesked, 1 Maule & S. 233. Peyton v. Mayor of London, 9 Barn.
& C. 785. J and sec 1 0 Barn, & C. 1 45. 1 Moo. & Malk. 550.1|

If a master of a ship brings an action on the case, and declares

that the ship was laden with corn in such a harbour, ready to

sail for Dantzic, and that the defendant entered and seized the

ship, and detained her, per quod impeditus et ohstructus fiiit in

viagio : this action well lies, for the master has not the property

8«Ik. 10. pi. 4. of the ship, but the owners; and he is only a particular officer,

Ld.Rayin.558. and can only recover for his particular loss : yet he might have

Gaince. brought trespass, as a bailiff of goods may, and then as bailifFhe

could only have declared on his possession, which is sufficient to

maintain trespass.

Cro'jM^asj ^^^ servant is cosened of his master's money, the master may

So, if Tsur- ***^^ °^ action on the case against the cosener.

geoo, in connderation of a sura of money, undertakes to cure my servant of a hurt, and he

•pphes unwholesome medicines thereto, on purpose to make the wound worse, by which

1 lose the service of my 8er\ant for a long time, I may have an action on the case against the
•uricon. Roll. Abr. 98. Roll. R. 1 24. S. C. adjorn. 2 Bulst. 332. S. C, and quoad the point
of law, the court inclmed for the plaintiff, but for default in the pleadings adjourned. And
Mdiolr" ^^ composition. Roll. Abr. 88. HSee tit. Master and Servant (I),

SfVilJ'Fr' ^^'^^'^'^^"■^"* ^^^^ '^'^' in execution upon a capias ad
»49. S. P. ild-' *°^^sMi^dum, at the suit of J. D. and after J. S. escapes by a
mitted prrmr. 'Wcue of himself, the sheriff may have an action upon the case
(a)Bui,if wch against him for this escape, for he is thereby chargeable {b) over
!LCri!r.h»t 'o"" t^'s to J. Z). and this escape made from his bailiff was an

f**"^"?*^ ^™!" i!'*' **""^' ^^"^ ^^^f'^ shall not have an action upon the case against him,
bMMW be w not Charlie over : but the baUiff only is chargeable. For this vide RoW. Abr.
•7, f«, W. t ro. Elu. 26, 349. Moor, 432. and tit. Escape in Civil Cases

(B) Against whom such Actio7i ties. 89

If a man gives money to his servant to carry to such a place, Vide head of
and he is robbed, the master cannot bring case against him, for ^^^'^^^ o"d
a servant only undertakes for his diligence and fidelity, and not VoTT
for the strength and security of his defence.

But, if ^. is employed by B. to sail from England to the Sid. 298.
IndieSy and A. covenants, that he or his servants vi^ill not thence Hussey and
import any calicoes, Sfc. and A. retains C. as his servant in this ^^^^y- Lev.
voyage, and acquaints him with the covenant, and notwith- s.C Roll Abr*
standing C falsely and fraudulently brings thence certain call- 105. S.P.
coeSf Sfc. A. shall have an action against C. ; for though no action
lies by a master for the bare breach of his command, yet, if a
servant does any thing falsely and fraudulently to the damage of
his master, an action will lie.

[An action on the case for goods lost may be maintained Dgyjg y^ Jq^.
against a carrier either by the consignor or consignee ; and it dan, 5 Burr,
may be brought by the former, notwithstanding a private agree- 2680. Moor v.
ment between him and the consignee, that the carriage should be ^ '„
paid by the latter ; for the carrier is liable upon his agreement.] 559 WThe
doctrine that the action may be brought either by the consignee or the consignor seems
unsound. The question is governed by the consideration in whom the property of the
goods is vested ; and it is now settled that if the goods were ordered to be delivered to a car-
rier, whether a particular carrier be named or not, thej' vest in the vendee by delivery to the
carrier, and the action against the carrier for their loss must be in the name of the vendee.
Dawes v. Peck, 8 Term R. 330. Button v. Solomonson, 3 Bos. & Pull. 582; and see Jacobs v.
Neilson, 3 Taunt. 423. And though the consignor pay for the booking of the goods, or be
liable for the carriage to the carrier, these circumstances have been held to make no difference.

8 Term R. 530. King v, Meredith, 2 Camp. 639. ; and see Brown v. Hodgson, 2 Camp. 36. ; but
see contrh the cases above referred to. 5 Burr. 2680. 1 Term R. 659., and 3 Camp. 320. But
if the vendor is induced by a fraud of a swindler to deliver goods to a carrier for him, and the
carrier by negligence lets him get possession of them, the vendor may sue the carrier in his own
name; for no property in such case passes out of the vendor. Duff v. Budd, 3 Bro. & Bing.
177. oMoo. 469.||

(B) Against whom such Action lies.

T F the servant of a taverner sells wine to another which is cor- 9 H. 6. 53. b.
rupted, an action upon the case lies against the master (a), JRoll. Abr. 95.

though he did not command the servant to sell it to any par- ^' ^' (") ^"'
..1° ,7^ •' ^ no action

ticular person. (6) lies against

the servant. Roll. Abr. 95. So, if an attorney in an action of debt, knows of, and was a witness
to, a release of the debt made before the action brought for it, yet no action lies against the
attorney, for he acted only as a servant, and in the way of his calling. 1 Mod. 209. /;er curiam.
Vide 2 Black. R. 869. {b) If a servant sells an unsound horse, or other merchandize in a fair,
no action lies against the master, unless he commanded him to sell to a particular person.

9 H. 6. 53. Roll. Abr. 95. S. C. Poph. 143. S. C. cited. 2 Roll. R. 6. S. C. cited. But, if by
the command and covin of the master he sells to a particular person, an action lies against the
master, for it is then his own sale. 9 H. 6. 53. Fitz. Action sur le Case, 5. S. C. Roll. Abr. 95.
Bridgm. 128. S.C. cited. Sed qu. In the former case, if the servant warrant a horse sound
when he is unsound, and receive a sound price of the buyer, whether the master is not bound
by the warranty of the servant, and liable to an action ? ||It is now held, that if a servant is
employed by his master to sell a horse, he has an implied authority to warrant it, and the master
is bound by his warranty. Alexander v. Gibson, 2Camp. 555. ; and see 5 Esp. Ca. 72. 1 Dow.
P. C. 45. 3 Term R. 76 1. 15 East, 45., and tit. Master and Servant (K), Vol. V. The doctrine
that a sound price given implies a warranty is now exploded. 2 East, 322.||

So, if a goldsmith makes plate, wherein he mingles dross, so Vide Cro. Jac,

that it is not according to the standard, and by his servant sells r oc^s^c'

if J

ACTIONS ON THE CASE.

it; an action lies against the master, because it fails in the price

of silver.
BHdcn. I«5, ^"l 'f -^-y ^*"g possessed of certain artificial and counterfeit

It6. SoutbCTn jewels, of the value of 168/., and knowing them to be such, de-

■nd How,
•djuUsed.
9R0U.R.5.
a«,«7.8.C

livens them to B. his servant, commanding him to transport the
said jewels into Barbary,^ and to sell them to the king of Bar-
baryt or such otlier person as would buy them, but gives B. no
charge to conceal their being counterfeit; and thereupon B.
Pop*^»«- goes into Barbary, and knowing these jewels to be counterfeit,
Cro 3Jf"J69r s****^" ''»*^'" ^ ^' ^^^ SP^^ ^"^ ^''"^ jewels, and affirming to C,
ac.,«ndiherc that they were worth 810/., desires C. to sell them to the said
Mid^the court kinff for 8I0/L, which money C. pays B.y and B. thereupon ira-
"**!"^. mediately returns to England, and pays the 810/. to A. his

£«^ prin- roster ; and after the jewels being discovered to be counterfeit,
dpally becaufc C. is imprisoned by the said king till he repays

the 810/. out

of his own effects; of all which matter C. gives notice to A. and
demands satisfaction, Sfc, yet no action lies against A. ; for jewels
are in themselves of an uncertain value, and B. was not by A,
particularly directed to C, and all that was done quoad C. was
the voluntary act of the servant, for which the master is not
bound to answer.

A. did not
order B. to
coocoii their
being counter-
feit. |But it
Sipean from
e report of
this case in

Brid^. 196, 1S7., and S MolL 330., that the plaintiff had judgment; but in 2 Roll. R. 26, 27. it
b Hud judgment was for the defendant.||

Salk. S89.
pL 85. Ruled
by HoUon
eridcnce at
MM priui ;
bat for this
flUr tit.
Mmkmdmid

Salk.988.
n. Ruled
HoUwlmd

puBotnTnon-
Miit. |But it
UHich

th«

WIBUMT.

OHMton,
t8twfc.a4.;
■adit wiQ not
BaMMOitU)«

In an action on the case for a deceit, the plaintiflf set forth

that he bought several parcels of silk for silk, whereas it

was another kind of silk ; and that the defendant, well knowing

this deceit, sold them to him for silk. On trial, upon not

guilty, it appeared that there was no actual deceit in the^ de-
fendant, who was the merchant; but that it was in his factor
beyond sea : and the doubt was, if this deceit could charge the
merchant. And Holt C, J. was of opinion, that the mer-
chant was^ answerable for the deceit of his factor, though not
cnminaliter yet civiliter ; for seeing somebody must be a loser
by this deceit, it was more reasonable that he that employs and
puts a trust and confidence in the deceiver should be a loser,
than a stranger; and upon this opinion the plaintiff had a
verdict

If A. brings case against the master of a stage-coach, on the
custom of the realm, for a trunk lost by his negligence, S^c. and
on evidence it appears that the trunk was delivered to the servant
who drove the coach, who promised to take care of it, and that
the trunk was lost out of his possession ; the action does not lie
against the master, for a stage-coachman is not within the custom
as a carrier is (a), unless he take a distinct price for the carriage
of goods as well as persons ; and though money be given the
• v/*^* u^' '^*' ^^ * gratuity, and cannot bring the master
withm the custom ; for no master is chargeable with the acts of
hJs servant, but when he acts in execution of the authority given
by his master, and then the act of the servant is the act of the
rooster.

unless

(B) Against whom such Action Hes. 91

unless he stipulate for a reward to be paid to himself. Ibid.\\ (a) That if a carrier's porter
receives goods, the carrier shall be liable. Comb. 118. per Dolben J. jjSee Cavenagh v. Such,
1 Price, 328.11

II On the trial of an action on the case for not delivering, ac- Ellis v. Tur-
cording to contract, certain goods of the plaintiff at Siockwith, "^^' ^z^^"^™ ^'
which were shipped on board the defendant's vessel at Hull ,- jj^ses where
it appeared that the defendant's vessel, trading from Hull to the servant is
Gainsborough, took on board some goods belonging to the acting within
plaintiff, which were to be delivered at Stochwith ; the vessel hj^g^^^i^*'^
went safe as far as Stockwith, and there delivered part of the mg^t the
cargo ; but the master of the vessel finding it inconvenient to master is liable
deliver the rest there, proceeded on the voyage, and the vessel to answer for
sunk before her arrival at Gainsborausli. It was objected, ^"^ damage
that in this form of action, an action on the contract for not from the un-
safely carrying and delivering the goods at Stockwith, the de- skilfulness or
fendants were not liable ; as the non- delivery of the goods there negligence of
was owing to the misconduct of the master of the vessel ; and 1;^ ^^'^^^^.J
that if they were liable at all, the action should have been for the ley v. Gaisford
tort. But it was holden, that though the loss happened in con- 2 H. Black,
sequence of the misconduct of the defendant's servant, the supe- ^22. M'Manua
riors (the defendants) are answerable for it in this action; T g "* j^5'
that the defendants are answerable for the conduct of their O'^le v. Barnes
servant in those things which respect his duty under them (a), sTermR. i88.
although not for his conduct in those things which do not respect ^tone v. Cart-
his duty under them. 2"/^^/' ^T^™

Steinman, 1 Bos. & Pull. 404. Croft v. Alison," 4 Barn. & A. 590. Laugher v. Pointer, 5 Bam.
& C. 547. ; and see tit. Matter and Servant (K), and tit. Carriers.

Where a vessel was run down by a sloop of war during the Nicholson v.
watch of the lieutenant, who was upon deck, and had the actual ^ou"sey,
management and direction of the steering and navigating of the ^^d see' *
sloop at the time, and when the captain was not upon deck, 4 Made & S.
nor called by his duty to be there; it was adjudged, that the 86., and tit.
captain was not answerable for the damage. || V^'^^^^r^K?

If two are constituted post-masters general, by letters patent, Salk. 17. pi. 8.
pursuant to the statute 12 Car. 2. c. 35., and in the patent there i^s. Carth.
is a power to make deputies, and appoint servants at their will o^^r h f ^
and pleasure, and to take security of them in the name and to Cotton and
the use of the king, and that they, the post-masters general, shall Sir Thomas
obey such orders as from time to time shall come from the king ; Frankland,
and as to the revenue, shall obey the orders of the treasury; and f m d E^^t
it is further granted to them, that they shall not be chargeable los.Ld.Raym.
for their officers, but only for their own voluntary faults and 646. 12 Mod.
misbehaviours, and this is granted with a fee of 1500/. per an- 472. Comyns,
num ; and A. having exchequer-bills, encloses them in a letter n*^*.}, iX
directed to B. at Worcester, and delivers it at the post-office at s.C. with the
London, into the hands of J. S. who was appointed by the post- arguments
master general to receive letters, and had a salary ; by three P''° ^^^ <^on. at
judges against Holt C. J. the post-masters general are (a) not g'^fjf ^^"Jg
I'able. ^^i;,, r^. •

sons, who held also that J. S. was chargeable, but not as an officer, but as a wrong-doer. [The
opinion of the three judges hath been confirmed in a late case of Whitfield v. Lord Le De-

spenser,

92 ACTIONS ON THE CASE.

^„„„ i„ which 1. «. dcciiea that d.e ^'-^r d"l^y p°o"]fi:Lrrl f^^!

CbX'v.'"'lAn acul for not repairing fences, .hereby a party is dam-
hX»" nififd, cannot be brought against the owner of the fee, who is not
4TerniK.31«. j possession, but lies only against the occupier.]

W^i^E. in my possession, tl^ugh 1 have a remec y =«--t the tres
Vic.r...\Vil. p^sor, yet I may have an action agamst him that caused the

cock^8ElUt,l. J:„.,,rh«npe

s Bos. & Pull, disturoance.

a84.. and Pro. Jac. 471.|| i , i v u-

Roll Abr.90. If 1 deliver my horse to a smith to shoe, and he de ivers h.m

s;),if I deliver ^o another smith, who pricks hnn, I may have an action on the

g«°<^^^° ^- case against him, though I did not deliver the horse to him.

rhemVo rto keep to the use of ^., and B. wastes them I may have an action upon the case

Ininst B. though I did not deliver them to him. Roll. Abr. 90.

Scbinotti V. [An action on the case will lie against the commissioners of

Bumsted, the lottery, for not adjudging a prize to the person entitled to

6 Term R. 646. ^.^ceive it.

Blake V. Lan- It will lie against a person who receives or continues to employ

yon, 6 Term t^g servant of another after notice, though he did not originally

^tTfJ^and entice him away.]

Servant {0).\\ , . , , . n , ,

Sutton V. II A person acting in a public function which he is compellable

Clarke, * to execute gratuitously, using his best skill and diligence, and

6 Taunt. 29.; actinf without malice, is not liable for consequential damages

^ITtId." occasioned by his act.l|

penden, 1 East> 555.

(C) For what Injuries an Action on the Case will lie ;
and herein of those Cases wherein a Man may be said
to suffer Damnum absque injuria,

TINDER this division various cases maybe crmprehended ;
^ but, as several of them fall under others, I shall here only
observe, that though in some cases an injury happens to a man
in his property, by the neglect of another, yet if by law he was
not obliged to be more careful, no action will lie.

Leon. 223. As, if a man finds butter, and by his negligent keeping it

Owen, Ml. putrifies, yet no action will lie.

Cro. Elix. 219. Or, if a man finds garments, and by negligent keeping they
are moth-eaten, no action lies.

Id. ibid. So, if a man finds goods, and loses them again ; or if he finds

a horse, and gives him no sustenance, no action lies ; for in
these cases the law has laid no duty on the finder : for it would
be too rigorous to obUge him to be charitable in behalf of a care-
less owner.

Roll. Abr. 5. But, if he makes gain and advantage of the things he finds ;

1 Leon. 224. as if he rides the horse, or if he abuses the things ; as by putting

paper

paper into water; or if he kills sheep, Sfc. he shall answer for Cfo.EHz. 219.

them. g?"'^ 1^5.

Stile, 261.

If A. hires B. to carry a load of timber from one town to another 2 Lev. 196.
to be unloaded there, at such a place as A. shall appoint, and B. Virtue and
gives notice to A. that he will bring it such a day, and requests ?'*"'^' Yf °'*
him to appoint a place where he shall lay it, and he brings it sKeb.Vss.
accordingly, but A. will not appoint any place where it shall be S.C. adjudged,
laid, so that the horses of B. are kept so long in the cart, that
being hot they catch cold and die ; yet B. shall have no action
against A. for he might have taken his horses out of the cart and
walked them, or put them in a stable, or if A. would not have
appointed a place, as soon as he came there, he might have
unloaded in any convenient place, so that the injury the horses
received was through his own default.

II The being delayed four hours by an obstruction in a high- Greasly v.
way, and the being thereby prevented from performing the same Colling,
journey as many times in a day as if the obstruction had not ^ ^'"&' ^6^- ;
existed, is a sufficient injury to entitle the plaintiff to sue the v"M^les^°*^
obstructor. 4'Maule'& S.

101.

If the proximate cause of the injury to the plaintifFbe his own Butterfield v.
unskilfulness or want of care, he cannot sue the defendant, though Forrester,
the primary cause be the defendant's wrongful act ; thus where i? ^*^' ^^'
the plaintiff was riding violently and without ordinary care, and Adam
rode against an illegal obstruction in the highway, it was held 2 Taunt. 314.
he could not maintain an action.

An action on the case will not lie against a person suing out Sclieibel y.
a writ, if he neglect to countermand it after payment of the debt, Fairbain,
unless malice be averred. Without an averment of malice, it 1 Bos. & Pull.

should seem that courts will scarcely subject a party to damages \^?r. , S® ^•
n. r J J f J o Whiple,

tor mere non-ieasance. 3 East 314

Gibson v. Chaters, 2 Bos. & Pull. 129. ; and see 1 Moo. 92. 5 Price, 1.

But if an execution creditor refuse to accept from the debtor Crozer v. Pill-
who is in custody the debt and costs when tendered, and to sign '"g. * Bam. &
an authority to the sheriff to discharge the debtor, an action on ^^*
the case lies for maliciously refusing, and the refusal to sign the
discharge, is evidence of malice in the absence of circumstances
to rebut the presumption. 1|

If it be damnum absque injuria^ no action on the case lies [a) ; (a) Damnum
as if a school be set up in the same town where an ancient school ^bsqiie injurid,
has been time out of mind, by which the old school receives wiU not*Xear
damage, yet no action upon the case lies, because it is lawful for an action.
a man to teach where he pleases ; and this is for the ease of the 6 Mod. 46.
people. P^^ Gould J.

^ ^ 3 Bulst. 95.

11 H. 4. 47. 22H.6. 14.b. Fitz. Action sur le Case, 28. S. C. Bro. 42. S.C. Noy, 184.S.C.
Noy, 184. S. C. cited Roll. Abr. 107. Mod. 69. S. P. per Twisden arguendo.

So, if I retain a master in my house to instruct my children, n H. 4. 47.
though this be to the damage of the common master, yet no ^^^- ^**'"' ^^'^'
action lies. *

ACTIONS ON THE CASE.

Roll. Abr. 107. So, if I have a mill, and my neighbour builds another mill
Hardr. 16«. upon his own ground, per quod the profit of my mill is dmimished,
Brownl. 57. yg^ „(, action lies against him ; for every one (a) may lawfully

(a?t*ut!tf I c*^*^' * *"''' **" '"^ °^" ground.

have had a mill by prescription in my own land, if another erects a new mill upon his own
land, if this draws away the stream from my mill, or stops it, or makes too great a quantity
of water run to my mill, by which I receive damage, so that my mill cannot grind as much
m it was used to do, I shall have an action on tlic cote against him. 22 H. 6. 14. Dyer, 248.
Roll. Abr. 107.

9S H. 6. M. If a man hath a house upon his own ground by prescription,

b. Roll. Abr. „ * jf j [i^xM a house upon my own ground next adjoining, no
107. But if I •' *: ,. . ^ ' •' °

had a house ac''©" "es against me.

by prescription upon my ground, another cannot erect a house upon his own ground, so near
to It as to stop the light of my house. 22 H. 6. 15. 9 Co. 59. Bland's case, Bulst. 115.
Hut. 136. Roll. Abr. 107. 2 Roll. Abr. 143. 3 Leon. 93.

S2 H. 6. 14. If I have 100 acres of pasture in a town, and before this time

^oy- '84. jjQ jjj^,^ \\ax\i ever had any pasture within the same town, and
those of the town have used to agist their cattle in my pasture,
and another that has freehold within the town, converts his arable
land into pasture, so that those of the town agist their cattle
there, per qtiod this is a damage to me, yet I cannot have any
remedy against him ; for it is lawful for him to make the best
advantage he can of his own land.
Governor &c. ^^'^ ^ sustain an injury by the act of commissioners appointed
of the British by an act of parliament, without any excess of their jurisdiction,
Cast Plate- no action lies either against the commissioners or the persons
glasa Manufac- acting under them.]
tory V. Mere- ° -•

dith, 4 Terra R. 794. ||See Harris v. Baker, 4 Maule & S. 27. Hall v. Smith, 2 Bing. 156.
Boolton T. Crowther, 2 Barn. & C. 703.; and see Jones v. Bird, 5 Barn. & A. 857.||

Roll Abr. 98.
Cro. Jac. 474.
S. C. 3 Term
R.57.

Cro. Eliz. 53.
adjudged.
/i.ia3.S.P.
adjudged.

Rayin. 194.
Good jar and
Butk^aKeb.
688. S. C. ad-
Joora. sKeU

(D) At what Time the Right of Action shall be said
to have accrued.

TF .4. sells sheep io B. affirming them to be his own, whereas
they belong to C, B. may have an action against A. for his
dc -it, oefore C. hath seized the sheep, or interrupted him;
because they are things transitory, and therefore the action lies
before interruption : for if he should stay till C. interrupted him,
he may be dead before, or other disadvantage may happen.

If A. recovers in debt against B. and thereupon a capias ad
satisfaciendum k directed to C. the sheriff of N. to take B. in
execution, which is accordingly done, and after B. rescues him-
self, per quod C. becomes liable to answer for the debt ; now C.
may have an action against B. before A. sues C. ; for the rescue
and escape was a wrong to C, and he is always chargeable to A,
for it; and if C. must stay till sued by A., B. may die in the
interim, or fly his country.

A. brings an action against B. in which C. is attorney for A.,
and after verdict for A., C. enters judgment before the rules
(according to the course of the court) are out, per quod B. is
prevented from moving an arrest of judgment, and whether B.

may

(E) Actions on the Case for Fraud and' Deceit. 96

may have an action against C. was doubted ; and Twisden thought 716 S C ad-
it hard the attorney should be sued after the judgment is set aside, journ, it ap-
But 7iote, it does not appear in the case, as reported by Rai/mond, peanng that
otherwise than from what Twisden said, that the judgment was the judgment
set aside before the action brought. before B^ ^

brought his action. — An action brought against the plaintiff's attorney, for entering judgment
against the defendant, when the court ordered a nonpros. Hut. 125. and yet it appears the
judgment was set aside before the action brought.

If a man forges a bond in my name, it is possible I may be Hob. 267.
damnified by it, but till it be put in suit against me I cannot ^ ^^•. '*^*
bring an action against the forger. where'^bythe

plaintiff's own shewing he had no right of action at the time of bringing it. Vide Carth. 1 13.
and tit. Error.

II The cause of action accrues at the time when the tortious Grander v.

act is done by the defendant, so that the statute of limitations then George,

begins to run, although the plaintiff rriay not in fact know of the 5 Barn. & C.

act till long after ; unless indeed the defendant is guilty of fraud in gj^'^j^ ^"^ ^^^

concealing the act from the plaintiff's knowledge, in which case the M'Carthy.

cause of action would seem to be complete only on the plaintifPs s Bam. & A.

knowledge. Where an act is done not in itself tortious, and some ^26. Brown

time after consequential damage arises to the plaintiff from it, the ^'n °^&V

cause of action does not accrue [a) till the damage happens. || 73 . ^nd see
3 Barn. & A. 288. (a) Roberts v. Read, 16 East, 215. Gillon v. Boddington, 1 R. & Moo.
161.; and see 3 Barn. & A. 448.

(E) Of Actions on the Case for Fraud and Deceit in
Contracts on an express or implied Warranty.

II (See Addenda to tit. Fraud.) |1

1. On an implied Warranty in Laia.

T F there be a communication between A. and B. for the buying ^oU. Abr. 90.

of certain sheep, and B. the vendor («), says they are his own g*^^ 4^%

sheep, when in truth they are the sheep of another: whereupon c.ios. 2 East

A. buys them of B. though B. made not any express warranty of 314. (a) In

the sheep, yet an action upon the case, in nature of deceit, lies ^" action for
• ^ u- ' fraudulently

against him. selling to the

plaintiff a horse that was not the defendant's own horse, the plaintiff must prove that the defend-
ant knew him not to be his own horse. Allen, 91. Keb. 523. but, qucere ; et vide C^vth. 90. and
Salk. 210., that the having possession of any personal chattel, and affirming it to be his, amounts
to warranty; and an action lies on the affirmation. Per Holt C.J. See ace. 3 Term R. 37.

II The law raises an implied promise on the part of a sheriff Peto v. Blades,
selling goods seized in execution, that he does not know that he ^ Taunt. 657.
has no title to the goods. ||

So, if the vendor affirms that the goods are the goods of a Roll. Abr. 91.
stranger, his friend, and that he had an authority from him to
sell them, and thereupon B. buys them, when in truth they are
the goods of another; yet, if he sold them fraudulently and
falsely, upon this pretence of authority, though he did not war-
rant them, and though it is not averred that he sold them, know-
ing

ACTIONS ON THE CASE.

Roll. Abr. 91.
Stile, 310.
S.C. Keb. 5S3.
&C. cited.

Carth. 90.
Crosse and
Gardner.
5 Mod. 261.
S. C. Comb
148, S. C.

Ing them to be the goods of a stranger, yet B. shall have an
action upon the case for this deceit.

In an action upon the case by A. against B. if the plaintiff
declares that the defendant craftily intended, S^c. and offering to
sell a gelding to the plaintiff, affirmed that he brought up that
gelding from a colt, and that the said gelding was then his own,
which the plaintiff believing, afterwards, that is to say, upon the
same day and year, and at the place aforesaid, did buy the said
gelding, ^c. the action lies upon this declaration, though there
was no warranty upon the sale ; for this was an apparent deceit,
contrary to his own knowledge ; and though it is not averred that
he sold the gelding at the same time when he affirmed he bred
him up from a colt, but that the plaintiff /(O^/^-a the same day and
place bought him, giving credit thereunto, this shall be intended
immediately after the speaking of the words ; for all the words
could not be spoken together.

So in case^ in which the plaintiff declared, that there being a
colloquium between him and the defendant, concerning the buying
and selling of two oxen, which the defendant then had in his
possession, that he (the defendant) adtioic et ibidem false et mali-
tiose affirmahat) that these oxen where his ; to whiqh the plaintiff
Show.68.S.C. giving credit, bought them of the defendant for so much money;
(a) fj"f^'^ when in truth the said oxen were the proper goods of t7. S. and
vendidit, <J-c. that he the said J. b.postea, Sfc. lawiully recovered the said oxen
after verdict, from the plaintiff, Sfc. it was holden after verdict, that the action
imports that it lay on the bare affirmation, without an express warranty ; and
an" 'supplies ^^^ugh objected, that it was not set forth that he {a) sciens that
the want the oxen were the oxen of J. S. nor that he did it deceptive.

thereof. Stile, 3 lo. sKeb. 807. vide Keb. 309. — So sciem, ^c. implies that it was fraudtt-
Imthr. Sid. 146. — So where the plaintiff declares quod improvidk et incautb absque consider-
atione inaptUudimt loci, he drove his horses over the plaintiff; though not said sciens that they
were unruly. 2 Lev. 172.

M^dira^v^''"' ^°' ^^®^*^ ^^^ plaintiff declared, that the defendant being pos-
Stoughton.for messed of a certain lottery-ticket, sold it to him, affirming it to be
selling false ^'s own, whereas in truth it was not his, but another's ; defendant
bills of credit, pleaded, he bought it bona fide, and so sold it : on demurrer,

repJrtS\y ^°^^ ^^^' "^"^'* ^^^^' ^''^^'^^ °"^ having possession of any per-
lA. Raymond, ^*^"^^ chattel, sells it, the bare affirming it to be his, amounts to
595. and the a warranty, and an action lies on the affirmation ; for his having
duunction possession is a colour of title, and perhaps no other title can be
twJln^Se ^^"^^ °"'' "^''^^' ^^^^''^ the seller is out of possession ; for there
teller being in '"^y ^^ room to question the seller's title, and caveat emptor in
poacMion and such case to have either an express warranty, or a good title : so
2J1. b'S^ " '^'" '^^ case of lands, whether the seller be in or out of pos-
mentioned by f^^^'^"/ ^^ the seller cannot have them without a title, and the
him. Sec Mr. '^"3'^'* ^s at his peril to see to it.

J^-jfer'. observations upon it, 3 Term R. 58.] Vide Stile, 343. 346. Cro. Jac. 197.
RS^efranf' ^^ ^^^ plaintiff declares, that whereas Queen Elizabeth was
Vaughan. ^^l^*^" /" J^^ pf t^e advowson of the vicarage of S. whereto the

Moor, 4€7. t'thes m 5. did belong, and that the defendant, upon the ninth
S.C of June, did affirm himself to be lawful incumbent thereof, and

that

(E) Actions on the Case for Fraud. (Warranty.) 97

that he had right to the tythes from the death of Jl N. and after,
upon the sixteenth o^June, the plaintiff having a communication
with the defendant about his buying of the defendant the said
tythes till Michaelmas following, the defendant adtunc sciens that
he had no right thereto (the defendant not having been insti-
tuted, c§T.) yet false et deceptive sold them to the plaintiff for 30/.
and alleges in facto, that J. N. was after presented, ^c. and took
the tythes, <^c. the action does not lie ; for there was no warranty
that the plaintiff should enjoy them ; and this affirmation also
was in time precedent to the sale. ^

So, if the plaintiff declares, that upon a communication be- Yelv. 20.
tween the plaintiff and the defendant, for the purchase of a certain Harvey and
term of years, v/hich the defendant then had in certain lands, Young. See
the defendant asseruit to the plaintiff, that the said term was ^^^
worth 1 50/. to be sold ; to which the said plaintiffj'^l^^w adhihens
did give the defendant 1 50/. for the same, and that after, the
plaintiff offering the said term to sale, could not get so much for
the same ; the action does not lie ; for here was only a naked
affirmation of the defendant, that the term was worth so much ;
and it was the plaintiff's folly to believe him.

But if, on a treaty for the purchase of a house, the defendant Salk.211.pl. 5.
affirms the rent to be SO/, per annum, whereas in truth it is but ^ ^.^"^^ ^1?4
20/., and thereby the plaintiff is induced to give so much more Ray^^'ms
than the house is worth, the action lies (a) ; for the value of the g. C. (a) Lev.
rent is matter that lies in the private knowledge of the land- 102. Sid. 146.
lord and tenant; and if they affirm the rent to be more than it Keb. 510. 318.
is, the purchaser is cheated, and ought to have a remedy for ^^^\y'^^ "
it. (^) (6) But if A

possessed of a term of years, offers to sell it to B., and says that a stranger would have given
him 20/. for this term, by which means B. buys it, though in truth A, was never offered 20/.
no action on the case lies, though B. is hereby deceived in the value. Roll. Abr. 91. 101.
Sid. 146. S. P.

II Where an action is brought for a false representation by ^^^^^ ^•
defendant knowingly made, and by which the plaintiff has sus- r'Vj^^'''.^,
tamed damage, it is not necessary to shew that the aeienuant
intended to injure the plaintiff. ||

2. Where Case will lie for a Fraud on an express Warranty.

If A. being a goldsmith, and having skill in jewels and precious Cro. Jac. 4.
stones, hath a stone which he affirms to be a Bezoar-stone, and tvveen^Chan^-
sells it to B. for 100/., when in fact it was no Bezoar-stone, no jgr and Lopus
action lies against A. ; for every one in selling his wares will affirm upon a writ of
that his goods are good, or that the horse which he sells is sound ; ^^'^ '" 'j'^'"*
and yet if he does not warrant them so (c), if false, no action g^rst judgment
lies, (a) reversed ac-

cordingly by all the justices and barons, cont. Anderson. Vide Dyer, 15. 'n margin, S. C.
cited, as adjudged in B. R. and they said, that the opinion of Popham was, that if I have

any commodity • • " ' •• • « . . r,-

80, an action 1

it to be good,

as adjudged in "b. R. 2 Roll. Rep. 5. S. C. cited, and said that the judgment was reversed,

because it was not pleaded that he knew it to be false at the time of the sale. ||So

Vol. I. H Springwell

98 ACTIONS ON THE CASE.

Snrinewcll v. Allen, Alc^•n 91. Paget v. Wilkinson, Tr. 8 W. 5. 2 Bast, 448. in not. and
DowJinj: V. Mortimer, Ibid. 453. in not. (c) If therefore he warrants tliem, in an action on
the cnsHbr a breach of that warranty, the scioiIIt need not be charged, nor if charged need it
be proveii. Willianison v. Allison, 2 East, 44G. LofFc, 146.|| (d) [An affirmation at the time of a
sale is n warranty, provided it appear in evidence to have been so intended. 3 Term R, 57.
tuprii, (E.)] llAs to implied warranties of the quality of goods &c. sold, see Parkinson v. Lee,

2 East, 514. Gray v. Cox, 4 Barn. & C. 108. Laing v. Fidgcon, 6 Taunt. 108. 4 Camp. 169.
144. Jones V. Bright, 5 Bing. 553.\\

Jeudwinc v, ||It lias been held that the setting the name of an old master

Riade, 2 Esp. against a picture in a sale catalogue is no warranty, but merely

*'** a representation of the seller's opinion.

Hall V. Gray, But if the agent of the vendor of a picture, knowing the vendee

I Stark. 434. labours under a delusion with respect to^i picture, which mate-

rially influences his judgment, permits him to make the purchase
without removing the delusion, the sale is void. ||

II H. 6. 18. If a man sells a tun of wine (a), and warrants it to be

^•^•^•^^- sound, and not corrupted, if it be corrupted an acftmi upon the

o. p. Poph. 1- *•

J43.S.P:cited. <^«5^"es.

A. sells sheep, and warrants that they are sound, and shall continue so for a year after, this is

good, and shall bind him. l|See JoliflTe t. Bendell, 1 Ry. &Moo. 136.|| Vide Dam. Ahr. 96.

188. (a) This action lies, though he hath not paid for it; for the other may have debt for his

money. Bro. Guarranty, 59. ^

(b) 11 H. 6. 18. So, if a man sells a horse (Z»), and warrants him to be sound of

S r M B t^' ^^^ wind and limbs (c), if he be not ah action upon the case lies.

without such warranty no action lies. 20 H, 6. 35. F. N. B. 94. S. P. Bridg. 127. S. P. Roll.
Ahr. 90. S. P. [If sold at the price of a sound horse, case in the nature of deceit would lie.
Deianccy v. Dymock, sittings after Easter term 1789, coram Lord Kenyon. See too

3 Wooddes. 199.] ||But a sound price given does not raise an implied warranty. 2 East, 322.
Douglas, 20.||

D^mlon V. []If the seller sell the horse as of the age stated in a written

PeakeCa. 123. V^^^ff^^^ this is a warranty, though the seller declare he^ knows

nothing of the horse except what he has learned from the

pedigree. ||
Roll.Abr. 96. If ^ nian, knowing his horse to be lame and foundered, offers
((f) Rut qiuere, him to me to buy, and warrants him to be sound, 4 c. relying
nt^rllJule^tat "P°" ^^^^^^ ^ buy him, by which I am deceived ; though the
thrwarranty^ warranty here was before the sale, yet because this was the cause
must be made of the sale, an action upon the case Hes thereupon, {d)
at the time of the sale. Vide Cro. Jac. 4. 1 96, 1 97. 630., nor can it be made after ; per Bridgman
127. Godb. 31. Vide Salk. 211. pi. 4. [Where a treaty for the sale of a commodity had
been entirely broken off, a warranty made at the time of such sale was holden not to extend
to a subsequent sale ofthe same commodity at a reduced price. Anon. Stra. 414.]
Roll. Abr. 97. ^^ ^' ^ells a horse to B. and warrants him to be sound of wind
adjudged. and limb, and clean of legs, whereas he well knows that he is

I.C adiiidged s^oyWer-pitched, and has splints upon his legs, an action lies
(*) But (}u^re ^g^^st him upon this warranty (e) ; for these imperfections are
of .^ V not subject to the view of an unskilful person.

**' V't ^*'"^'. ^ ^°"- ^- ^' ^"^S- ^28. Diversity where he has no eve, and where

nU'liror''V. n • ^"S*^* *^>'®'^"^"'''^'^C'*o-J«c.3B7. sBulst. 95. sKeb.loi. Bro.
•SiIj. smS,!^^^^^^^ F.N.B.94.note(c). 2 Wooddes. 41 5. l|See Liddard v. Kain,

B^JleffieVifv.'*' V^^ plaintiff declared, that the defendant sold him a horse

Burroughs. * ^"^'^ » ^^y and place, ct adlunc et ibidem 'isoarrantizavit equum

prcedict, to be sound wind and limb, whereupon he paid hi»

money,

(E) Actions on the Case for Fraud. (Warranty.) 99

money, and avers the horse had but one eye, Sfc, on plea nmi
ivarrantizavit, the plaintiff had a verdict : and it was objected in
arrest of judgment, 1. That the want of an eye is a visible thing,
whereas the warranty extends only to secret infirmities; but to
this it was answered and resolved by the court, that this might
be so, and must be found to be so, since the jury have found that
the defendant did warrant. 2. As the warranty is here set forth,
it might be at a time after the sale, whereas it ought to be part
of the very contract ; and therefore it is always alleged warranti-
zando vendidit; sed non allocatur; for the payment was after-
wards, and it was that which completed the bargain, which was
imperfect without it.

[If there be an express warranty not respecting the soundness Buchanan v.
of horses merely, but some distinct matter, as their age; and it 2XerraR'745
be a condition of sale, that the horses, if conceived to be unsound, ii/^) ggg Poul-
shall be returned in a limited time ; an action may be maintained ton v. Latti-
by the buyer if the horses are not of the age they are warranted more, 9 Barn,
to be, though they are not returned till after such time has &^-259.|l
elapsed ; for the condition of sale applies only to the unsound-
ness ; nor does the buyer lose his remedy, though, upon the
seller's refusing to take them back, he sells them again to a third
person, [a)

Although on the sale of a horse there is an express warranty Adam r.
by the seller, that the horse is sound, free from vice, 8fC. yet, if ? u^ gf\
it is accompanied with an undertaking on the part of the seller to ^^^J
take the horse again, and pay back the purchase-money, if on
trial he shall be found to have any of the defects mentioned in the
warranty ; the buyer must return the horse as soon as he dis-
covers any of those defects, else he cannot maintain an action
upon the warranty. For the term trial in such case means a
reasonable trial.

It has been determined by the Court of Common Pleas, that' Fielder r.
the seller of an unsound horse warranted sound, if it can be ^^''Hi?' . p
clearly proved that the horse was unsound at the time of the sale, J^ iisee Curl
is liable to an action on the warranty, without notice or return.] tis'v. Hannay,

3 Esp. 82. Poulton V. Lattiinore, 9 Bam. & C. 259.tf

II A temporary lameness which renders a horse less fit for ser- i<;iton v.
vice is a breach of warranty of soundness. Brogden,

4 Camp. 281.; sed vide 2 Esp. Ca. 573 .

Roaring is unsoundness, if it is shewn to proceed from some gassett v. Col-
disease or organic defect. lis, 2 Camp.

523. Onslow V. Eames, 2 Stark. 81.

A nerved horse is unsound. Best v. Os-

borne, 1 Ry. & Moo. 290.

Crib-biting is not a breach of a general warranty of soundness. Brennenburgh

V. Haycock, Holt Ca. 630,
A cough, unless proved to be of a temporary nature, is un- shillitoe v.
soundness. Claridge,

2 Chitt. R. 425. ; and see Ibid. 418.

If a horse is sold with a warranty that he is a good drawer, Coltherd v.

H 2 and

100

Puncheon,
sDoir.&

Rjran, 10.

Richardson v.
Brown,
I Btng. 344.

GeddesT.
Pennington,
SDow.&R.
164.

Cuwcll V.

Coarc,

I Taunt. 566.

1 Camp. 82.

Symonds v.
Carr, I Camp.
361.

P&yne v.
Whale, r East,
874.

ACTIONS ON THE CASE.

and pulls quiet in harness, both parts of the warranty must be
shewn by the seller to be true.

A warranty as follows, « To be sold, a black gelding, five
years old, has been continually driven in the plough, warranted,"
applies to nothing more than soundness, and not to having been
driven continually in the plough.

Wliere a horse is sold with a warranty of soundness, but there
is a misrepresentation at the sale as to the place from whence the
horse came, if the warranty is complied with, the misrepresent-
ation will not vitiate the sale.

Upon the breach of a warranty of a horse, the measure of
damages, if the horse is returned, is the price paid for him ; if
the horse is not returned, the measure of damages is the differ-
ence between the real value and the price paid. If the horse is
not tendered to the defendant, the plaintiff can recover nothing
for the expense of his keep.

Where two persons severally employed a dealer to sell their
horses, and he sold them for an entire price, and warranted them
sound ; it was held that the purchaser could not sever the con-
tract, and bring an action on the warranty -against one of the
sellers, in respect of the unsoundness of his horse.

Where the seller warranted a horse sound, and in a conversa-
tion subsequently said, that if the horse were unsound (which he
denied), he would take it again, and return the money ; it was
held that this was no abandonment of the original contract, and
the vendee's remedy was upon the warranty. U

(F) Of Actions on the Case for Injuries to a Man's
Person, Property, Right, or Privilege.

Vent 295. JF .4. rides an unruly horse in Lincoln^ s-Inn Fields, (being a
3 kcl) 6^^' ^^^^^ "^"^^ frequented by the king's subjects, and unfit for

S. C.'and 8c- ^^^^^ purpose,) to break and tame him, and the horse breaks from
veral cases •^' and runs over B. and grievously hurts him, 8^c. B. shall have
cited of actions an action against A. : for though the mischief was done against

i.3« done '^^ ^^^^ °^ ^'^ y®' ^'"^^ ^^ ^^^ ^'^ ^^^^^ ^ bring a wild horse into
to a man's ^^^^ ^ P^^^^» where mischief probably might ensue, A. must
person by wild answer for the consequence of so ill an act.

and ungovernable animals. An action for keeping a mad bull which gored the plaintiff, &c.
^^:ui n '" , r.^^ *^"'"^* ^^ ^"^ge'l '" the declaration that the defendant knew
ttattne bull was mad. Ibid In all cases where the mischief is done by animals mansuetcB
mnawttie owner must be shewn to have had notice of their viciousness before he can be
SEI^-k" L "°"? must be set out in the declaration ; but as to animals /^r* nature,
SSTJ^? ^l ,bT/^'''".nr 'V^''^^'^?'■ «"y ''^'"^?e t^'ey may do, wUhout notice. Ld. Raym.
SL ir~>» . A '^ 'F"?? plamtiff allege m his declaration that the defendant /enow-

2Si?L?»1fl!^"l°'"*^ **? '"/^ '^^P ""^ ^° bite mankind, this allegation must be strictly
ErSrfji^t l"^* / ^? declaration would be good if it alleged generally that the defend-
ffiS^Hlil^^Mt^^^^^ l!'^f'^' '^' --^^ disposition.^ufge v. c'ox, I Stark. .86.

t^'u^Jo' ^' -{^ "^^" ^^y* H^ of wood cross a highway, though a person
H«; there ^^y w.th care ride safely by (a), yet if by means thereof my horse

stumbles,

(F) For Injuries to a Matins PersoUy Propertt/, <§,t. 101

stumbles, and thereby I am wounded or hurt, I shall have action be a want of
on the case. ordinary care,

in such case
the action will not lie. Butterfield v. Forrester, 1 1 East, 60. Though the primary cause of the
damage may be the misfeasance of the defendant, yet if the proximate cause be the plaintiff's
unskilfulness, he cannot recover. Flower v. Adam, 2 Taunt. SM.JI

For an injury accruing to a man in his (a) real estate of free- ^°'^- ^^"^v. '°^*
hold or inheritance, case will lie ; as, \i A. levies a fine, suffers fee jn'^r^ft for
a recovery, acknowledges a judgment, recognizances, statute me refuses to
merchant, or staple, in my name, I may have an action. execute the

trust, I have
no remedy but in chancery; but, if he enfeoffs another, an action on the case lies. Roll.
Abr. 108. 2 Vent. 27. So, if the officer refuses to enrol a bargain and sale. Sid. 209,
2 Bulst. 336.

If a parishioner sets out his tythes of hay duly, and requires Roll. Abr. 109
the parson to carry them off his land, but he does not carry them 5 Burr. i89i,
off in a convenient time, per quod the grass where the hay lies is USee Williami
impaired by the hay's lying upon it, an action upon the case lies ^"^^ p'
against the parson, ^„/[^ y^^^;,

(G g). Vol. VIII. II [The parson is not obliged to take tythe of grass the day it is cut, but may
let it lie there long enough to make it into hay. Stra. 245.]

If a man who ought to enclose against my land does not Roll. Abr. 105.
enclose, per quod the cattle of his tenants enter into my land (*) Or the cat-
and do damage to me, I may have an action on the case against *^^ of any other
k;.^ /j.\ person. [The

*^"^-(^) . ^ action can be

brought only against the tenant in possession. 4 Term R. 318. Supra, (B).] Ij Unless it can
be shewn that the landlord is actually bound to repair. Payne v. Rogers, 2 H. Black. 350. ;
and see 4 Taunt. 649. A person who has suffered loss in consequence of the decay of sea walls,
which a corporation is directed to repair under a grant from tne crown, may sue the corpo-
ration for damages. Henly v. Mayor &c. of Lyme, 5 Bing. 91.||

Ijlf A. sends his horse to B. for the night, and B. turns it out Rooth v.
after dark into his field, separated from a field of C. by a fence, y^^^°"'o .
which C. is bound to repair, and the horse, from the bad state of ^g
the fence, falls from one field into the other and is killed, B. may
maintain an action against C, and recover the value of the horse,
and this although B. is a gratuitous bailee. ||

If A. being a mason, and using to sell stones, is possessed of Cro. Jac. 567.
a certain stone-pit, and B. intending to discredit it and deprive Roll.R. I62.
him of the profit of the said mine, imposes so great threats upon ' *
his workmen, and disturbs all comers, threatening to maim and
vex them with suits if they buy any stones, so that some desist
from working, and others from buying, S^c. A. shall have an
action upon the case against B., for the profit of his mine is thereby
impaired.

If a man menaces my tenants at will of life and member, per ^o\\. Abr. 107,
quod they depart from their tenures (c), an action upon the case j^e threaten-
lies against him. ing, without'

their departure, is no cause of action. Roll. Abr. 108. Where a copyholder may have case
against his lord for cutting the tops of trees, for not admitting on a surrender, or for not hold-
ing a court, vide head of Copyhold.

II If a man discharges guns near my decoy-pond with design to Keeble v.
damnify me by frightening away the wild fowl resorting thereto, f J^E^^^t"^'-'!

H 3 and ** ' ^' *

lot ACTIONS ON THE CASE.

and the wHd fowl are thereby frightened away, and I am clamni-

ficd, nn action on the case lies against him.
Ilaanam ▼. It is to be observed tliat wild fowl are protected by statute

Mockett, 25 H. 8. c 1 1. and are a known article of food ; but an action

9 Bam. & C. jo^s ^ot lie for discharging guns near the plaintiff's rookery, and
"^ thereby disturbing the rooks, for they are birds ^r<a? nalura, of

destructive habits, and not protected by any act of parliament,

and the plaintiff can have no property in them.||
But for thw If a commoner, who hath a right to common by grant or

■Mghod of prescription, be disturbed by the lord or a stranger in the enjoy-
g|""*^*"*^ ment, lie may have an action on the case.

4 Mod. 17*5. 6 Mod. 19. Ld. Raym. 1225. Salk. 170. pi. 3. 364. pi. 5. Skin. 214. Lutw.
74. 101.

1 Roll. Abr. [If a man has a private way over the land of another, and is

109. Cro. EUi. obstructed in the enjoyment of it, this action lies, whether he
« RoH Abr da'^i it by express reservation in any modern deed, by grant,
140. 1 Venu-. by prescription, or by operation of law. This easement may be
874. Com. 7. obstructed in an actionable manner, not only by slopping up the
In an action ^^y q^ passage, but by ploughing up the land over which the
^Dot repair- ^^ ^*®^* ^' *^ sufficient as against a wrongdoer"(a), for the declar-
ing a private ation to allege generally that the plaintiff was lawfully possessed
road leading of a certain tenement, and by reason thereof entitled to the way

through his jj^ question, without deducing a regular title from any person
crotind. It IS • j • r o o J r

efficient to seised m fee.

charge him as occupier upon h'ls possession merely. Rider t. Smith, 3 Term R. 766. %a) And
to also in declaring against the owner of the soil, the phiintiff may declare on his possession.
9WiU.S8und.n4.a. no^ii.jl

1 RdL Abr. If any person erects a smelting-house, or works for making

mitt^i Burr. QQ^sfort's, or such like, the vapour and smoke of which spoil the
835. ISeepwi g^^ss or com, or injure the cattle of his neighbour, it is a nui-
(G), and aUo sance to the land for which this action lies.]
tit. Nttttanct.\^

For dm tide If A. hath a mill by prescription which he hath used to repair,

Ro!l!Abr*i*07. ^"^ *^ ^^'^.^ ^^^ ^^^ tenants of the manor, time out of mind, have

Dany.Abr. 5,' ground their corn and grain spent in the houses of the tenants of

«. and Carth. the said manor, if one of the tenants grinds his corn elsewhere,

filLi^™'*!' \' ^* ^^^°^^ ^^^^ *" ^'^^"^ ^ '^^ '^°^^ against him. So, if A. by his

5i<?*pL 5. prescription has a mill on his own land, and B. erects a mill on

889. pL 25. "^ own land, if by this ^.'s mill receives any prejudice by having

the water stopped or drawn away, or having too great a quantity

°^^ater run on his mill, by which it cannot grind as much as it

used to do, A, shall have an action on the case against him.

1^51^7?^' k ^ °' "^^ ^^^^ ancient pits which are replenished by a rivulet,

"® "^*y cleanse, but cannot enlarge the channels leading to them

to the prejudice to another ; if he does, he is liable to an action

^^ on the case for diverting the water.]

5Il?6^ka«. v}^^ the owner of land through which a river runs enlarge a
w^, ndm <^"^nel of certain dimensions, through which the water had been
ig^W. y^J° J®^ before any appropriation of it by another, and
« Ph«. . Uiereby divert more of it to the prejudice of a land-owner lower

down the nver, who had at any time before such enlargement

appro-

• Prioe,!.

(F) For Injuries to a Man*s Person, Properlify S^^. lOS

appropriated to Iiimself the surplus water vhich did not escape
by the former channel, case lies against him.

But the plaintiff in such an action must allege, and prove that Williams r
he has sustained an injury from the want of a sufficient quantity Moriand,
of water. If this is shewn, the action may be maintained, though 2 Barn. & C.
the plaintiff has not enjoyed his mill precisely in the same con- ^^o. 4 Dow.*
dition for twenty years. || Sa^u'nckrs t.

Newman, 1 Barn. 8c A. 258. And see Greenslade v. Halliday, 6 Bing. 379.

[If a man have an ancient ferry, and another set up a new Blisset v.
ferry so near to it as to draw away the custom, case lies; for he ^ '^'p Vj*"
who has an ancient ferry is compellable by law to keep boats, Sfc. jj^jj' j^j p"^
and therefore the law having imposed an obligation upon him, 76.
protects him in the exclusive enjoyment of the right.

But an exclusive right to a ferry from A. to B. does not pre- Tripp v.
vent persons from going by any other boat from A. directly to C l^rank, 4 Term
though it be near to B., provided it be not done fraudulently, ^^' ^^^'
and merely for the purpose of avoiding the regular ferry.]

II In an action on the case for disturbing a f«rry, it is sufficient Peter v. Ken-
to prove that the plaintiff was in possession of the ferry at the dall, 6 Barn,
time when the cause of action arose. It is not necessary to & ^- 703.
allege or prove the payment of any specified sum for passage
money.

Neglect of duty on the part of the owner of the ferry is no Ibid.
answer to the action, although the crown may, on that ground,
repeal the grant by a scire facias or a qiio warranio.\\

For injuries to a man's house or habitation, an action on the Kell. 98.b.

ca5^ will lie; as i? A. hath the upper room, and B. the under , ', ' , ^'"^'
1 J 1 . . 1 • r> L (C). 2 Leon,

room, and A. neglects to cover his upper room, B. may riave an ^^^ j^^ ^j ^^^y

action on the case against A. and thereby compel him to cover force li. to

his upper room for the preservation of the timber of the under support his un-

room. '^^^ '■"O"* ^""^

the preserv-
ation of the upper room of A. Kelw. 98. ||See Peyton r. Mayor of London, post.\\

If the plaintiff declares that J". S. being seised of a messuage in Poph. 46.
fee, 23 April, 32 Eiiz. did demise to the plaintiff a cellar from f,^)-,"'!'^'^ ""f
week to week, Sfc. and that after, viz. 29 Julj/, 32 Eliz. J. S. did juj^^.i! i,i the
demise to the defendant a warehouse, being right over the said Court of Ex-
cellar, to hold from week to week, ^c. and that the plaintiff being chequer, and
possessed of the cellar, and the defendant of the said warehouse, ^, ™ c '"
and the plaintiff then having in the said cellar three butts of sack, q Leon. 93 a-i.
of the value of 40/. 4'c. the defendant, 30 Jidi/, 32 Eliz. did place S. C.
so great a weight of goods in the said warehouse, and thereby did
so over-burden the floor of the said warehouse, that by force and
weight of the said burden, the said floor on the said 30 Juli/
broke, and the said goods did fall upon the said butts, and broke
the same, ^r. and the defendant pleads that a short time before
the floor did sustain as great weight as this, and the warehouse
was let to him to lay in thirty ton weight, and that he had placed
there but fourteen ton ; and that what damage had happened to
the plaintiff, was by reason that the floor at the time, as also
before the lease to him made, was rotten, and the wall whereupon
the floor lay so decayed, that the said floor liroke, Src. for want of

H 4 repara-

104 ACTIONS ON THE CASE.

reiiarations before the lease to him made; the plaintiff shall have
his judgment, for it is expressly alleged that the floor, by the
weight of the said merchandize, did break, and that is not tra-
versed but answered argumentatively only, viz. that it did bear
more l>efore, ngo, ^c. and though it was ruinous when the
defendant took it, yet if it fell by reason of any weight by the
defendant placed there, he must answer for the consequence.
For Um cum It was formerly holden, that if a fire broke out accidentally in
on thb had, n man's house, and raged to that degree as to burn his neigh-
«Mr DaiiT. hour's, tl>at he in whose house the fire first happened, was liable
•nd sis 'is *o *" ^^^'^ ^ '^'^ '^^^^ °" ^^^ general custom of the realm, quod

&ih'.°i: Lr^"^ '^"'°' '""" "'"" *'• , :::z^i^- 'VA-,

6 Ann. C.31. But now by tlie 6 Ann. cap. 31. § 6, 7. it is' enacted, that " no '

$6, 7. M action, suit, or process whatsoever shall be had, maintained,

roa.'Ic'pcnw^ " °^ prosecuted against any person in whose house or chamber
tualbj loAnn. " any fire shall accidentally begin, or any recompense be made
c H. $1. "by such person for any damage suffered or occasioned there-

Co. Lit 57. iL « jjy^ ^^^ provided that nothing contained in the act shall extend
°* ' ^ ' "to defeat or make void any contract or agreement made be-

" tween landlord and tenant.";^ ' ; . , /^^, fVr*~
Pc)ton T. II If the plaintiffs house in Cheapside adjoins the defendant's

Mayor of house, and the defendant pulls his house down, and in conse-
^^?~;^'^£; quence thereof the plaintifjp's house in part falls, the plaintiff
7g^, ' cannot have an action against the defendant, unless he allege and

prove a right to have his house lean against and be supported by
the defendant's house. But if the defendant pulls his house
down without giving proper notice to the plaintiff, so that the
plaintiff may protect his house by shoring it, it seems an action
lies. II
Cro.Car. 187. If the plaintiff declares that he was and is yet possessed of a
8 C*lJhKiBed ^^^^ ^^^ several years adtunc et adhuc ventur. of and in a house,
juogea. ^^j ^j^^^ j^^ demised the same to the defendant for six months,
and that after the six months expired, the defendant being per-
mitted to occupy the said house for two months longer, pulled
down the windows, Spc. this action well lies, in regard that the
plaintiff is chargeable over in an action of waste.
Yomgv. flThe owner of a house may have an action on the case

8p««'» against his lessee for opening a new door, if the reversionary

I45^^t«* '"^®*"<^s' >s injured by it, although the house itself is not weak-
iMto.& enedorinjured.il
Malk. 350. 405.

fiwthbf'tiile'^ ^^ °' ™^.*^^^^ *" ancient house, and another builds a house so
JVWMlie«,«nd"f°'" ^^^^ ^^^ windows are darkened, he may have an action on
Daav. 805. '^ <^^* against him. (a)

2!?l;i*?' ,?xT''/«' f Mod. 116. 313. See Ld. Raym. 392. 713. 2 Salk. 459. pi. 4.
!S- f„ I'll I' ^"^ ^'» * "•"" ^"^*^^ a ^o"se so near mine as to cause the

jfaloWluponniyhouK. Roll. Abr. 107. 2 Leon. 93. S. P. [i Stra. 645. Fortesc.

{SITr™ • V^^^. '^"^'^"^ window has been stopped up for twenty years.
oi«,3Ump. It 103^3 jt3 privUege, and the owner cannot sue his neighbour

for

(F) For Injuries to a Maris Person, Property, S^c. 105

for doing an act which was no nuisance while the window was 514. And
stopped up, and which only became so by a new window being v^u[^ ^ j
opened where the old one had been. l,|gn stopped

up and a blank wall built for the space of seventeen years, the privilege was held to be lost, so
that the owner could not open windows again, and complain of an obstruction by his neigh-
bour made while the blank wall was existing. Moore v. Rawson, 3 Bam. & C. 332. ; and see
1 Moo. & Malk. 350.

But if an ancient window be enlarged, although the enlarged Chandler v.
portion of it is not privileged, yet the adjoining landowner cannot Thompson,
obstruct the passage of light and air, to any portion of the space '^'

occupied by the ancient window ; and it is no excuse for doing
so, that more light and air is admitted through the unobstructed
part than was anciently enjoyed.

The owner of ancient windows cannot by altering the purposes Martin v.
for which his house is used, acquire any extended right against Goble,
his neighbour. Therefore where a building, which had been for ^ ^a™P-322.
twenty years used as a malt-house, was converted into a dwelling-
house, it was decided that the owner was entitled only to the de-
gree of light necessary for making malt, and not to all that
might be necessary for domestic purposes.

A title to lights cannot be acquired as against an adjoining Daniel t.
proprietor by twenty years' enjoyment of them, if it appear that North,
during all that time the adjoining premises have been occupied ^ ^ *•' ^^^*
by a tenant, and there is no evidence of the proprietor having
any knowledge of the enjoyment of the lights ; for without his
knowledge a grant of the easement cannot be presumed against
him.

And it was held the same where the land adjoining the lights Barker v.
had been glebe land, in the occupation of the rector ; for the 4 b^^^^'a
rector as a mere tenant for life could not grant the easement, and 579. *
consequently a grant could not be presumed.

But if it appear that the adjoining premises have been occu- Cross v. Lewis,
pied by a tenant for twenty years, and it does not appear how Lg ^VT g^
they were occupied prior to that tenancy, and the lights have Ry.'234.
been enjoyed thirty-eight years without interruption, a presump-
tion of grant may be made, since during the eighteen years after
their commencement nothing appears to rebut the presumption ;
and it makes no difference that the lights were not opened at the
extremity of the party's land.

If the owner of a house divide it into two tenements, and Riviere v.
demise one to the defendant, he is liable to an action on the case ^°^^'"' * ^y*
for obstructing windows existing in the house at the time of the &^oo-24.i
demise, although of recent construction, and though there was 1 Price 27.
no stipulation against the obstruction. || 1 Moo. &

Malk. 396.

[If a man has a right to sit in a particular pew in a church. Stocks v.
and is disturbed therein, he may have an action on the case, ^oo''^ ^^.^'■™
Such right may be claimed either by prescription as appurtenant q'^^ g*^^ ' ^*
to a messuage from keeping it in repair ; or under a faculty (a) 1 b. E. L. 329.
from the ordinary ; or, perhaps, under an allotment and agree- Kenrick v.
ment with the minister and churchwardens, especially where the Taylor, iWils.
church is rebuilt. In all cases it seems necessary to claim the f^^' umnte?™

pew

10(> ACTIONS ON THE CASE.

, iicw ns appurtenant to a messuage in the declaration, {b) Where

SSl^te this action is brought against a stranger or wrong-doer, it is
ptaamed. sufficict.t for the plaintiff to allege in his declaration that he is
5T«raiIt898. entitletl by prescription to the pew in question, as appurtenant to
A fiioilry to • ,^j^ niessuage, without further stating the particulars of his claini. (c)
hS!i U not" Hilt against the ordinary, wiio has pHrnd facie the disposal of all
good: nor is a the scats in the church, a title or consideration must be shewn m
prcKription m ,1,^ declaration and proved ; as a faculty from one of his prede-
K'^iTtTm** censors having built at a distant period, or by due authority, such
r! 488. I n. E. pew, or having constantly repaired the same.

L. S3 1, jjlt mu«t l)c npinirtcnnnt to a house or messuage in the parish. Mainwanng v. Giles,
5Btfn. & A. 35«.; and see Forrest, 14. Byerlev v. WincUis, 5 Barn. & C. l.|| See Cross v.
adter, 3 Term H. 63y., in which case the King's Bench held, that the sentences in the eccle-
Mttiral courts were not conclusive evidence of the right. But that case does not seem to
itfbrd anv gcncrul rule, for the two superior ecclesiastical jurisdictions appear not to have de-
cMed po'iitivcly on the right. 3 Wooddes. 196. (A) 1 Wils. 526. 1 Term R. 431. (c) An
uninterrupted [Hjssetwion of the pew for thirty years is presumptive evidence of a prescnptive
right; but that presumption may be rebutted by proof of the non-existence of the pew before
that time. Griffith v. Matthews, 5 Term R. 296.

Godb. SCO. If a parson deface a grave-stone or coat-armour in a church,

Cto.Jac.367. jjjjs action lies, notwithstanding the injury l^e wilful and direct;

for in this case, as in that immediately preceding, trespass vi et

minis cannot be brought ; because the freehold of the church is

in the rector.]

Spooncrv. || Where, however, a person wrongfully removed a tombstone

Brt-wstcr, from the church-yard, and erased the inscription, it was lately

sBii%. 136 jjgjj j|,gj ^j^g erector of it might maintain trespass against him.|l

As to the torts and injuries affecting a man's personal property,

and for which an action on the case is the proper remedy, they

are so many and so various in their kinds, that they cannot well

be laid together; I shall set down only some of them here, and

such as may govern in like cases.

p^ y^ [Fraud and deceit in the defendant, and damage to the plain-

Freemao, tiff, are a sufficient foundation for this action, though no benefit

s Term R. 51. accrue to the defendant ; therefore it was holden by three justices

!-*JJ* V^""*" °^ ^^^ ^"'"^ °^ ^* ^•' against Grose J. that it would lie for a

."Tis's. i* ^*'^^ affirmation respecting the credit of a third person, made

Without fraud with intent to deceive the plaintiff*, and by which he was injured,

and an intent though it did not appear that the defendant was benefited by the

to weave, deceit, or tiiat he colluded with him of whom he ijave the ficti-
thia action. It .• \ ^ -, *

•eeM, cannot ^^^^^ character.]

be mvatained ; the representation must be made maid fide. Haycraft v. Creasy, 2 East, 92.
Hoh*» Ca. 387. Sec Lord Eldonh observations on the case of Pasley v. Freeman, 6 Ves. 186.
See aUo Ta(>p v. Lcc, 3 Bos. & Pull. 361. If, however, the representation of the defendant is
fidae to hh knowleiigc, the platntifT need not show any intention on the defendant's part
to injlire him. 7 Bin^. 105. if the representation is fraudulent, and is made with reference
to tlw pbiotiflr* o|>enmg an account with the party as a gaieral customer, and the plaintiH",
ia coMSqMMc of it, tells gootis from time to time to the buyer, and is afterwards a loser
%j yjm, CMS Kc* for the deceit, although the buyer pays for the first parcels of goods, on the
^^ 1 of which the reference is made. This liability, however, is to be limited within a rea-
dme, and to a reasonable amount. Hutchinson v. Bell, 1 Tannt. 558. But if the vendor
generally of the defendant concerning the buyer's circumstances, he cannot maintain
the action if the buyer pays for the particular goods which it was in contemplation to sell at
-iMl IIbk the rcprewntation was made, though the buyer becomes insolvent and docs not pay
fcr Mkv goods Mibwquently sold. Dc Graves v. Smith, 2 Camp. 533, : and see 2 New R. 24 1.
«i Price, 56. 7Pricc,5«.||

li Where

(F) For Tniuries to a Man^s Person, Property , 6^c, 107

II Where the vendor of a public-house, pending the treaty, made Dobell v.

deceitful representations as to the amount of business done at, S^-c. ?n^^"^V p

whereby the plaintiff was induced to give a large sum for it, it was ggs,
held that the latter might sue for the deceitful representations,
although not noticed in the conveyance or agreement of sale. ||

If a man razes the name of the obligor out of an obligation. Roll. Abr. loo.

and in the room thereof puts in the name of J. S. and after sues ^9'" cheating

him upon this obligation, J. S. may have an action on the case. q^.^ g^j^, '^^ ^

Co. Ent. 8. F. N. B. 95. Moor, 776. For keeping a dog, knowing him to be accustomed to
bite sheep. Danv. Abr. 19. [If he afterwards bite a hoi*se ; for the owner ought to have
destroyed him on notice of the first mischief. Ld. Raym. 69. That he hath done so twice
before is sufficient proof of usage. Dy. 236.] ||Seean/^, p. 100,, and sCarr. & P. 138.|| For using
the same mark which the plaintiff hath used to set to his cloths. Poph. 144. Cro. Jac. 471.
S Roll. R. 28. iJSykes v. Sykes, 3 Barn. & C. 541. acc.|l

If A. takes my cattle and drives them into ^.'s close, where Roll. Abr. 90.

tliey do B. such prejudice as subjects me to B's action, I may Lane, 67.
have an action o?i the case against A.

II If a man place dangerous traps baited with flesh in his own Townsend v.

ground, so near to a highway or the premises of another, that Wathen,

dogs passing along the highway, or kept in those premises, will 9 East, 277.
probably be attracted by the scent into the traps, and his neigh-
bour's dogs are so attracted, and thereby injured, an action on
the case lies against him.

The court of C. B. were divided in opinion on the question, Deane v.

whether it was lawful for the owners of woodlands to set dog Clayton,

spears in them for the preservation of his hares, the spears being ji^oof *203 *•

all more than fifty yards from the public pathway, which passed and see

through the wood, and public notice being given outside the 2 Stark. 317.
wood.

And where a trespasser had knowledge that spring guns were Ilott v. Wilkes,

set in a wood, although ignorant of the particular spots where ^ Barn. & A.

they were placed, it was held that he could not maintain an action ^°^'
for an injury received from treading on one of the guns.

But it is otherwise if the plaintiff has no knowledge. Bird y. Hol-
brook, 4 Bing. 1 Moo. & Malk. 595. 628. By 7 & 8 G. 4. c. 18. $ 1. setting spring guns, man
traps, &c. is a misdemeanour, except when set in dwelling houses.

The law requires of persons keeping instruments of danger, Dixon v. Bell,
that they should keep them with the utmost care ; therefore where f gg *"
the defendant being possessed of a loaded gun, sent a young girl
to fetch it, and gave directions to take the priming out, and this
was done, but nevertheless a damage accrued to the plaintiff's
son, in consequence of the girl presenting the gun at him and
drawing the trigger, when it went off, it was held that defendant
was liable to an action on the case.||

If a man lend or hire another's horse, and for want of safe Cro. Eliz. 777.
keeping the horse die, the owner may have an actio?i on the case ^*^* Owen, 52,
to repair the damage sustained by the negligence of the borrower, j^^^.' jg.
So, if a man lend another sheep to tath his land, and if by the Godb. 72.
negligence of the borrower they are drowned; so, if a man Doci.Sf Stud.
lend another a horse, who puts him into a ruinous stable, which M^"{«f'"u^^V
tumbles in upon him and kills him («) : or if a man over-ride a 'i \viS)n°°*
horse lent or hired to him, in all these cases an action will lie; 1 Bam. &'a.

but, 59.11

108 ACTIONS ON THE CASE.

but, if the stable had fallen by a violent tempest, or the horse died

of any disease, then had the hirer or borrower been excused.

Oodb. 885, If ^' obtains judgment in a debt against B. as executor to his

sRoU. R.31S father, and thereupon A. takes out ajerifadasy but before the

Mod. 186. sheriff can execute it B. secrete etfraudulenter sells, removes, and

[Thb lart MI- disposes of all the testator's goods, so that the sheriff is forced
uin* tL"c"n'. to return nuUa bona, ^c. an action upon the case lies^ against^..

thority roain-

tnry.] for the sheriff could not return a devastavit; and if this action

does not lie, the party is without remedy.

Garth. 3, 4. If ^' declares that he had obtained judgment against J. S. for

Smith and 100/. and that 100/. more was due to him for rent arrear; that

Tonstall, ad- |,g intending to take out execution, and also to bring an action of

judgcil^on^e^ debt for the rent in arrear, (the said J. S. being then possessed of

3^ffii^ed in goods and chattels sufficient to discharge the whole,) which being

the House of very well known to B. (the defendant) he, by covin conspiring

Pccn. ^ith the said J.S. to defeat the plaintiff of his execution, and of

recovering the money for rent arrear, procured the said J. S. to

confess a judgment for 160/. (of such a term) to one J. N. uhi

revera the said J. S. did not owe any thing to the said J. N. and

that he sued out execution on this feigned jndgment, by virtue

whereof he seized all the goods and chattels of the said J. S.

which he esloined to places unknown, and converted to his own

use, by reason whereof the plaintiff lost his debt ; the action

well lies.

Leon. 240. Also for injuries done to a man with respect to his wife, as by

Noy, 106. having criminal conversation with her ; with respect to his child,

I k\^ iO ^ ^y enticing him away, or by enticing away his servant (a); or

by aeducing ^^ ^Y servant without cause or licence departs from my service,

Im daughter, and J. S. knowing him to be my servant, retains him in his

per quod $er- service, and so keeps him, an action lies.
vitium tmtitit.

The right to which action seems to be extended to one standing in loco parentit. But in either
case if the daughter be of age, acts of service must be proved. 2 Term R. 166. 5 Burr. 1878.
1 1 East, 22. If under age the relation of master and servant must subsist at the time of the
•eduction. Dean v. Peel, 5 East, 45. In actions of adultery the proper form is trespass ; and
for the other injuries adverted to in the text, satisfaction may be had in that form of action.
Cowp. 54. sWils. 18. See 2Term R. 1C7. Ld. Raym. 1032., and the remarks thereon in
sWoodde«.«45, 246. n. ||Sce tit. Trespass (C), VoI.VII.|| (a) But where a servant had
covenanted to work at a trade for a limited time, under a penalty, and having'quitted his place,
tbeaatter sued him and recovered the penalty; this was holden to discharge the second
BMter fipom an action for hiring him, the penalty being deemed full satisfaction for the loss of
•emce. Bird v. Randall, 3 Burr. 1345. 1 Black. R. 375. S. C. jjSee tit. Master and Servant.\\

gttaktad v. [So it was holden, that this action would lie where the de-

Wakeman, fendant falsely and maliciously wrote a letter to a person who
'S M 8.C ^^ engaged to take the plaintiff as his wife, suggesting, that he
IKA.US. ^^ ^^^ husband, by means whereof the intended marriage was
«w.«o».S.C. frustrated.]
It neiat, unleM »omc special damage could have been proved, that this cause would have been

pronBrooly for the eccleuastical court, under the name of a suit for jactitation of viarriage.

RolL Abr. 88. So, if a man digs a ditch in the highway, into which my ser-
2Bul»i.334. vant falls and breaks his thigh, by which I lose his service for a

long

(F) For Injuries to a Man's Person, Property, ^c. 109

lonff time, I shall have an action oil the case against him lb) for „ ,. t,

.1 °l ru- • ^ Roll. R. 124.

the loss of his service. (^^ S^^ ^^ dig.

ging a pit, per quod J. S. for whose life I hold lands, was drowned. Keb. 847.

Also actions on the case are proper for injuries in disturbing Vide Assump-
one in the enjoyment of any right or privilege he is entitled to; ^''■* ^^** -^^*'*
as, if the beadle of an hundred ought by virtue of his place to
have by prescription certain gallons of beer of every brewer at a
certain price, if the brewers will not suffer him to have it ac-
cordingly, an action upon the case lies.

II A declaration is bad which merely states that the plaintiff Thompson v.
being a solicitor retained at a public meeting to submit a bill in Noel, 1 5 East,
parliament, and that the defendant, the chairman of the meet- * ^ '
ing, and one of the committee appointed for despatch of business,
conspired with others to disturb plaintiff in his employment,
and procured other solicitors to be employed. ||

If a man ought to have toll upon the buying of cattle in a 7 H. 4. 44. b.
market, if one buys cattle and does not pay the toll, an action on ^^' ^- ^^' ^-
the case lies against him. ^^X^S^e.

S. R. Bro. 57. S. C. Roll. Abr. ] 06. S. C. [In such case, assuvipsit is now usually brought,
1 Term R. 61 6. 660.] So, if persons coming to market are disturbed, by which I lose my toll,
an action on the case lies. 11 H. 4. 47. b. Roll. Abr. 106. Vent. 26, 28. Or if upon a^sale
in a fair a stranger disturbs the lord in taking the toll, an action upon the case lies. 9 H. 6. 45.
Roll. Abr. 106. [It is the proper remedy for a fraud upon the toll of a market. Cowp. 664.]
IJBailiffs, &c. of Tewkesbury, v. Bricknell, 2 Taunt. 120.||

[An action on the case will not lie against justices of the peace Basset v. God-
for refusing to grant a licence to keep an inn or ale-house.] schall, Esq.

sWils. 121.
[I In an action against a magistrate for a malicious conviction, Burley v.
it is not sufficient for plaintiff to shew himself innocent of the Bethune,
offence, but he must also prove, from what passed before the ^ Tf ""u 11°* .
magistrate, that there was a want of probable cause. |j and see tit. '

Justices, and tit. Trespass.

If my tenants within a certain seignorv ought time out of 43 E. 3. so.

mind to go free to every market and fair to sell and buy goods ^o"-aw. 106.

without payment of toll, and one takes toll of them in his fair or ya^j y'j p^j.j

market, an action on the case lies against him. 2 Saund. 172.

and the notes (5th ed.).||

If a man disturbs my steward in holding my leet, an action on ^^„ ^ ^^
the case lies against him. So if the

lord's servants are disturbed in collecting his tythes. 19R. 2. 52. Roll. Abr- 107. So, if a
&t"anger who has no right, holds a court in my manor, and by distresses, &c. so impoverishes
my tenants that they cannot pay their rents, an action on the case lies. 13 H. 4. 11. Roll.
Abr. 106.

If a man hath the assize of bread and beer, fines, amerciaments, 38 H. 6. 9. b.
and other matters of frankpledge, by the king's grant, and he Rojl. Abr. 106.
distrains for an amerciament, and a stranger makes a rescue, an „ ju''" action
action upon the case lies against him. the plaintiff

declares that Queen Elizabeth did grant to him the office of steward of the manor of D. and
that the defendants eundem plaintiff ad exercend. dictum officium, et vadia, feoda, commoda
et proficua thereto belonging habere et percipere, vi et armis ivipediverunt, ^c. this is a good
declaration, notwithstanding the catua cauians^vix. the interruption of the plaintiff to exercise

the

no ACTIONS ON THE CASE.

the ofBcc. U Jaia to be done ri ct armit, for the causa causata, viz. the loss of the fees, is the
LL^fthe .ction. 9 Co. 50. 4 Leon, 243. Hob. 180. Pahn. 46. 2 Brownl. 532. Cro.
C«r. 377. 5» Roll- Kep- 139.

9Co.88.Vent. If the sljeriff of the county, or his bailiff, execute a writ in a
SM.8ko«r. »7. franchise or liberty of one, who by grant or prescription hath the
^^•■*' *'** execution and return of writs, an action on the case lies.
Cvrctt ▼. U But where the long established and recognized practice had

SmJIpi^ been, that a writ of capias with a noti omittas clause issued in
9 BM^ 530. ji^g ^^j.j instance, and was executed by the sheriff, within a par-
ticular liberty, the bailiff of which had the execution and return
of writs, without a writ of latitat first issued, and a return of
mandavi halliro, Sfc.y it was held, that an action on the case could
not be supported by the bailiff against the party suing out
such writes; since under these circumstances he could not shew
that he wrongfully, injuriously, and deceitfully caused it to be
issued. II

We are next to enquire for what wrongs and injuries com-
mitted by officers and ministers of justice, and others, acting
contrary to the duty the law lays on them, with respect to their
trades and callings, an action on the case will lie. And therefore,

1. Where an Action on the Case mil lie against Officers and
Ministers of Justice,

9 H. 6. 60, h. It seems agreed, that no action on the case (a) lies against a
Roll.Abr.92. judge of a court of record for a wrong judgment, and that if it
\\C 'p'p appears to have been an error of his judgment (i), he is subject
350. URex v. ^ ^^ prosecution whatsoever.

Jackson, 1 Term R. 653. Rex v. Borron, 3 Barn. & A. 452. Rex v. Bishop, 5 Barn. A. 612.j|
(a) Not against a judge of the inferior court for taking insufficient bail. Hutt. 120. An
actioQ Ues against a judge of the Stannary CJourt for refusing a plea which by law he ought to
have accepted. 2 Roll. R. 498. per j'onet Just, cccteris absentibus ; but for this vide title
BUU of Excepliom, (6) But for corruption they are punishable ; the judges in Westminster-
hail, properly, by impeachment in parliament. 1 Hawk. P. C. 550. Inferior judges by inform-
ntioo, attacnmcnt, &c. for which vide the heads ; also the head of Offices and Officers ; and
t Salk. 396. where, per HoU^ the Mayor of Hereford, for giving judgment for his own lessee
in ejectment, was committed.*

• As to the immunity of the judges from prosecutions, vide 31 Ed. 3. st.4. c. 17.

Leon. 189. If the plaintiff declare that he affirmed a plaint of debt in the

court of B, against C. and thereupon caused C. to be arrested,

and that the defendants (being the mayor, town-clerk, and gaoler

of n. did conspire to delay the plaintiff in his suit ; and in part

of his said debt had let C. go at large, without taking any part,

this action will lie, for the not taking of bail is not the cause of

the action, but the conspiracy.

ME. 3.39. If the bailiffs in ancient demesne hold plea after the record is

UkcMint' '^"^oved in banky by which the tenant loses his land there by

Roil. Abr. 92. '«^overy, he may have an action upon the case against them.

8^P« •c^ooy'"^^ the under steward of a court baron, for proceeding after a corpus cum

emuA deRrared. S Leon. 99 adjudged. Against a clerk who had the custody of a record, and

Riflrred it to be altered. Raym. 53. Sid. 77. Keb. 23. 346. Vide Lev. 64.

4 Intt. 226. If an escheator returns a false office, contrary to what was

Rol^AlM-%a. ^^"*^ ^y ^^^i"^» in prejudice of the party, an action upon the

case

(F) For Lyurks to a MarCs Person, P roper ti/, <§^c. Ill

case lies against him ; for in this he is barely an officer, and not
a judge.

If my servant is robbed, and he goes to a justice of peace and Leon. 323.
prays to be examined touching the robbery, and the justice re- ^ji.^'^t- 27.
fuses to examine him, so that I am thereby damnified, and can- But for this
not proceed against the hundred, I shall have an action against vide title
the justice; for the examination by him in this case is not as a Justices of
judge, but as a particular minister by the act appointed for this ^^«c^.
purpose, (c)

{(I) If a summoner of the ecclesiastical court falsely and ma- Roll. Abr. 90.
liciously colore officii sui to the intent to scandalize J. S. with the Carlian and
fame of incontinency with A., and to put him to expense in the ^'Ul- Cro. Car.
Ecclesiastical Court, cites J. S. to appear for incontinency with A., jon'gg gjg
upon which J. S. appears, and is there charged by the judge with S. C. (d) Like
it, and upon his answer discharged, by which he is put to ex- point in an ac-
pence ; J. S. may have an action upon the case against the sum- ^'°" ^'nst
moner upon such a declaration, though he be an officer of the dens for such a
Ecclesiastical Court; inasmuch as it is alleged that 'he cited him presentment,
falsely and maliciously et colore officii^ it shall be intended that he Cro. Car. 285.
did it without process. ^^^' ^^■

Abr. 112. pi. 9. 2 Mod. 52. Vent. 86. Sid. 463. Lev. 292. S.P.

(a) If a minister of justice hath a warrant to (a) attach (b) the (a)3Bulst.2i2.
goods of another, and can do it and does it not, an actio?i tipon ^ ._'
the case lies against him. S.P. per curiam,

(b) So, if I shew J. S. to the sheriff, and give him a writ to arrest him, and he does not.
Cro. Eliz. 873. per Walvisly. (c) But, if upon a capias utlagatum before judgment, the sheriflT
neglects to extend or seize goods, &c. this is the king's loss, and the party shall have no
action, though it was objected, the sheriff extending, &c. would have been a means to force
the defendant to appear ; but it was said, that if it had been shewn that the sherift" might have
taken his body, &c. there would have been more reason to support the action. 2 Vent. 90.

If a sheriff makes a false return, as, if he return a cepi corpus For this vide
and paratum haheOy or languidus, when the party is at large "^'-^^ ^x Sheriff
without bail, an action on the case lies against him for the false ^^j,^ Actions.
return : but if he had taken bail, though the party does not ap-
pear at the return of the writ, yet no action lies against the
sheriff; for by the 23 H. 6. c. 9. the sheriff is obliged to take
bail.

If the sheriff returns the tenant summoned in a real action 26 Ass. 48.
where he was not, by which he (d) loses by default, an action lies li ^ V^^'u^f*
against him for this. " acdonVthe

sheriff is liable, vide head of Sheriff, {d) For the judgment should stand, and the party is put
to his remedy against the sheriff. Moor, 349. Bro. Action sur Case, 5. Goulds. 128.

[If a bailiff remove goods off the premises under a. Jieri facias Palgravev.

before the landlord is paid his year's rent pursuant to the statute ^"'"^'ham,

8 Ann. c. 17., case lies against him; and the action may be iiSce tit. ^t«/

brought at the suit of an administrator.] (K), 8.||

If at the petition of ^. and the rest of the creditors of 5. a com- 2 Roll. Rep.

mission upon the statute against bankrupts is issued out against 47. But for

B. and thereupon the commissioners sit, and offer interrogatories ^^^^ "^'' '^^''^

to C. and he refuses to be examined, and by them thereupon is and^GoalTnS

committed to prison, and the gaoler suffers him to escape, A. Gaoler.
may have an action against the gaoler for this escape.

[If

112 ACTIONS ON THE CASE.

Ravenscroft [If a gaoler suffer a prisoner upon mesne process to escape, he

▼. Eyle«, is liable to an action on the case, though the prisoner return the

l^^' ^l*' same day to the prison, and the plaintiff proceed to final judgment
iaj>€,m,lGaol aganist him.J
and Gaoler^ and Sheriff.^^

Roll. Hep. 78. If a warrant upon a^fieri facias to levy a debt at the suit of J. S.
^^oH-Abr. 94. i^ jirected to an under-bailiff of a liberty, and he by virtue
AM^u thereof levy the debt, and after conceal the writ and make not
and BaHif. any certificate thereof, an action on the case lies against the

under-bailiff, because he has done a personal tort.
Latch, 159. So, if a distress at the suit of ^. issues out of the court of C.

Adjudged directed to J. S. (who is not the usual officer) to distrain the cattle
"rroruTnV °^ ^' *^^-' °^ ^^^^ ^' should find pledges to appear at the next
judgment in court ; and thereupon J. S. distrains the cattle of B. and after re-
Cheyney delivers them to B. without taking sufficient security, Sec. and B.

Court. jQgs not appear, 4'C' an action lies against J. S., notwithstanding

he is no known officer, but pro hac vice only.

Roll. Abr. 93. If a summoner of the ecclesiastical court, upon a premonition

s Bulst. 266. directed to him by the ecclesiastical court to warn J. S. to pay

12 Co'. 128. certain costs awarded against him by the court, returns to the

Roll. Rep. 63. court, that he hath warned the said J. 5., by which the saidjl S,

S.C. adjudged is excommunicated, where in truth he never warned him; J. S.

between ^^^y have an action upon the case against him for this false return,

Godfrey. though he be an ecclesiastical officer ; for the excommunication

is a temporal as well as a spiritual disadvantage, as during its

continuance he cannot bring an action, and is liable to an ex-

communicatio capiendo.

Sid. 276. \{ dijleri facias de bonis ecclesiasiicis of J". & be directed to the

l^*Ss^^320 ^'shop of E. and he return qicod nulla habet bono ecclesiastical

lA. Raym. ' which is false, an action on the case lies against the bishop for

265.11 this false return.

11 Co. 99. If upon a mandamus to restore J. S. to his place of a burgess of

James Bagge's p, xiel causam nobis signif. the mayor, S^c. return a good cause,
SS.'^So'^'an '^^^ matter of which is false, an action lies for the false return,
action lies against the mayor and commonalty of L. for making a false certificate of a
custom. Hob. 87. So, against the surrogate of a bishop, who makes a false return as to the
custom of choosing churchwardens. 3 Lev. 362. Vide Garth. 227. 2 Salk. 428. pi. 1. 430.
pi. 5. Ld. Raym. 391. Vide tit. Mandamus. [And note, that regularly an action on the case
IS the proper remedy for all false returns. Doug. 153, 154.]

beTween' ^^" ^^ ^^^ plaintiff declares, that within the city of London there is

Turner and *" ancient bridge, and that by custom of the said city two officers

Sr Samuel to look after it, called bridge-masters, by the citizens at a common

Suriing, ad- hall assembled have been yearly chosen or continued ; and that if

!^J^m ^Tu^ '^^"^ ^^^^*° ^^^ ^^^^ ^^'^ ^"^^^^ another for the remainder
colli. Vaughan, of the year hath always been chosen as aforesaid, and that there
and Vent. 206. are certain fees and profits belonging to the said office; and that
S. C. upon a A. and B. were elected to this office ; that A. during his said year
InBR!^^ „ ' 7^ "PO" a hall, by the defendant (being then lord mayor)
firmed per called for the election of a bridge-master in the place of A. then
totam curiam, and there the plaintiff and one J. S. as competitors stood for the
St Ut. 53. said office ; and thereupon the question did arise, who had the

greater

(F) For Injuries to a Man's Person^ Property t S^' H^

greater number of electors ; and the plaintiff did aver his number g q. A.ml
to be the greater ; and thereupon did request the defendant, that there the cus-
according to the custom they might go to the poll, but the defend- torn was laid,
ant did refuse to number the polls, and made proclamation that gjg(.j.Qj.g ^gj-g
die electors should depart, and discharged the court, and J. S. go divided,
was sworn ; per quod the plaintiff lost the profit of the place, <§•<:. that the plu-
this action lies as well for this (a) injurious prevention of him ra^i^y ^^"^^
from obtaining the office, as for an hindrance of him in the , ^^^ ^j^^^
execution thereof; for qui destruit medium destruitjinem. the mayor

ought to m'ant the poll, and that the electors were so divided, &c. And adjudged per cur.
prcEter Vaughan, that the action lay ; though it was not averred that he would have been
elected if the poll had been granted ; for the mayor did not do his duty, and the per quoad
he lost the profits of his place is sufficient after verdict, (a) If upon a writ de coronatore
eligend, the sheriff will not return him coroner who is chosen by the major part, an action lies.
2 Vent. 26. Vide 2 Sid. 168, 169, &c. 3 Keb. 664. 859. Diversity between an office of govern-
ment and an office of profit.

A. declares that the king's writ issued, and was delivered to the Salk. 20, 21.
sheriff of Bucks, for election of members of parliament in his &c. Ld.Raym.
county ; that the sheriff made out his precept to the defendants, ^^a\^\\ 8.
being constables of the borough of Ayleshurif, for the election of g^ -pri, 89.
two burgesses for that borough, which was delivered, and the Cas. Temp,
burgesses duly assembled to choose, ^c. and that the plaintiff Holt, 524.
being duly qualified, 8fc. and ready to give his voice for L. and 1^J^° ^ ' ^'
M. to be burgesses, Sfc. the defendants, knowing the premises, white et al.
maliciously obstructed him, and would not allow or receive it, adjudged by
and that without his voice two burgesses were chosen; it was ad- three judges,
judged after a verdict for the plaintiff in B. B. by three judges Q^j^.^ho held,
against Holt C. J. that the action did not lie. Their chief rea- that for every
sons were, that this was a parliamentary offence, and properly injury an ac-
enquirable there ; that to determine it here might occasion a t^o" i»y > *^'\^*
clashing of jurisdictions ; that it did not appear that the party had jury jong'the"
suffered any injury; that to allow of such actions would create a plaintiff; as it
multiplicity of actions, to the great prejudice of officers ; and deprived him
per Gould J. the officer is a judge, and therefore not liable to an of the greatest
action; Siud per PowisJ. he is quasi a judge, and therefore has ^u^Yecf has
a distinguishing power who to admit and who to refuse.' which is that

of consenting to those laws by which he is to be bound ; that the parliament's having a juris-
diction is no objection, especially in this case, where the grievance is, that the party is not
represented; that the officer is neither a judge, nor quasi a judge; that the multiplicity of
actions is no objection ; for if a man will multiply wrongs, it is but reasonable that actions
should be multiplied, &c. And note ; the judgment was reversed in the House of Lords,
according to Holt's opinion : Trevor C. J. and P7-ice and sixteen lords concurred with the
judges o( B. R. the rest of the judges and fifty lords concurred with Holt. ||l Bro. P. Ca. 62.
S. C. But though the judgment was reversed in the House of Lords, yet the lords did not
proceed upon the broad ground which Lord Holt had taken in the court below. Lord Holt
nad insisted that the action lay for the mere obstruction of the right ; but the lords, in the
justification of their conduct, which was supposed to be written by Lord Holt, put it upon a
different principle, the wilfulness, the maliciousness of the act. 8 St. Tr. 129. And subsequent
cases have considered malice as of the very essence of actions of this kind, and upon that
principle judges have adopted the decision of the lords in this case. Harman v. Tappcnden,

1 East, 555. Drew v. Colton, Id. 563. Milward v. Sargent, Id. 567. Cullen v. Morris,

2 Stark. R. 577.||

flln case against the sheriff of Sujfolk, the declaration charged, Barnardiston
that the defendant maliciously intending to deprive him. of the ^" °*'*'"^'
Vol. I. I office

114 ACTIONS ON THE CASE.

«Lct. 114. office of kni«r|it of the shire, made a double return. Upon a
Pollcxf. 470. trial at bar, Twisdcti, Rainsford, and Wijlde held, and so dn-ected
the jury, that if the return were made maliciously, they ought
to fintl for the plaintiff; which they did with 800/. damages.
On motion in arrest of judgment, Hnle C. J. being in court, he,
Twisdeii and n^lde J. held, that forasmuch as the return was
laid to he /also et malitiose et ed intentinne to put the plaintiff to
charge and expense, and so found by the jury, the action lay.

5 Lev 50 Judgment, however, was reversed in the Exchequer Chamber,
iLutw.89. and that judgment of reversal affirmed in parliament. This
7 St, Tr. 422. reversal gave occasion to the act of 7 & 8 W. S. c. 7. which should
eScTr. 102. gggj„ Jo be a declaratory act, and which gives an action against

the returning officer for all false returns mlfully made, and for
double Teiuvns falsely, 'wilfully^- and maliciomlij made.
Schinotti v. ^^ action on the case lies against a commissioner of the

Bumstead, * lottery for not adjudging a prize to the holder of a ticket entitled

6 Term R. 646. to receive it-U

2. Wliere Case •will lie for Torts and Injuries committed hy Per-
sons contrary to the Duty of their Trades and Callings.

Roll Abr 8. ^^* ^^^ (^) delivers goods to a common carrier (/;), to carry

Vide for this them to a certain place, if he loses them, an action upon the case
title Carrier, lies against him ; for by the common custom of the realm he

and head of ^^^i to carry them safely.
Trover and o J J

Convertion. (a) An action lies against a ferryman that refuses to carry passengers. Hardr. 1G3.
Vide a special declaration against a letter-carrier for the non-<lelivei"y of a letter delivered out
to him at the general post-office. Rob. Ent. 103. (i) So, against a lighterman, master cf a
ship, or owners. Roil. Abr. 2. 2Lev. C9. Hob. 25. That the undertaking makes him a com-
mon carrier. Cro. J;ic. 262. Sid. 245. Vide head of liniliuent. So, if they are damaged.
Palm. 523. So, if he be robbed of them. 4 Co. 84. 2 Saund.SSO. [Tlie carrier is liable for
every accident, except by the act of God, or of the king's enemies. 1 Term R. 35.]

Roll. Abr. 3, 4. So, if an innkeeper refuses to entertain a guest, on pretence
r^e h ad of ^^^ house is already full, an action on the case lies against him :
Inns and Inn- ^^^ ^^ ^^ goods of his guest are stolen or lost in his house, ^c.

keepers.

Ld.Raym.2i4. [So, if a man suffer materially from the neglect or ignorance
1 Danv. 77. of a common surgeon or apothecary ; aliter, if of a person not
Iventfc^* making public profession of such business, for it was the plaintifTs

8 East, 347,11 °^" ^'^^^^y ^° ^^^^^ t" one who was unskilled; however, upon an
So, where a express undertaking, the action would lie, even in that case.]
surgeon and an apothecary broke the callus of the plaintiflTs leg after it was formed, it appear-
ing that It was done by their going out of the common course of practice, and in making an
expenment with a new instrument. Slater v. Baker and Stapleton, 2 Wils, 559.

R^lf Abr^l ^.^ * ^^^^^^ refuses to shoe my horse, or if he pricks him, an

Saund.3i2. ' ^^''on on the case lies against him. (c)

Roll. Abr. 10. So, if a farrier kills my horse with bad medicines, or by neglect
49' That'an '" curmg him ; an actt07i on the case lies, without any express
action lies promise.

•gainst a barber for shaving the plaintiff »«.g/^eirf^ et inarixficialifer. 2 Bulst. 333. Vide Hobr

211

(F) For Injuries to a Man's Person, Property, ^c, 116

211. 11 Co. 54. Saund. 512., that before SEWz. c. 4. no man was restrained from exercising
any trade; but he that performed it falsely and insufficiently was answerable in an action. [An
action cannot be maintained against a carpenter simply as such, and without any express con-
sideration, for an injury sustained in conse()uence of liis not entering upon a piece of work he
had engaged to perform. Elsee v. Gatward, 5 Term R. 143.]

If a client receives an injury by the neglect or fiaud of bis at- y^^^ ^j^
torney, an action lies(r/); as, if an attorney suffers judgment to Attorney.
go against his client by nil dicit, when he had a warrant to ('0 Winch, go.
plead the general issue {e) ; so, if in a plea of land he makes de- ^^J r 1 P n'^r
fault (^); or, if an attorney by collusion with J.S. and without gg' Ci-o, jac. '
any warrant from me, appears for me in an action of trespass at 695. Dyer,5C2.
the suit of J. S. and suffers the inquest to pass against me by de- Stile, 42g
fault, whereupon J. S. recovers against me, I may have an action ^ "^ J''a j
on the case. rr«?"wiiethe?

the judgment should not be vacated. Cro. Jac. 344. 695. sinst. 122. Keb. 89. 2koll. Abr. 724.
Where case will lie against a counsellor, vide Roll. Abr. 10. 91. ||BIackstone expressly lays it
down, " An advocate or attorney that betray the cause of their client, or being retained
neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case
for a reparation to their injured client." Books, c. 9. p. 164. Finch's Law, p. 188. Anil in
the Year-Book, 11 Hen. C. 24. 55. it is laid down, " If one retains counsel and give him his
fee to assist in the purchase of a manor, if he becomes counsel for another, or cliscovers his
council, case lies;" which is cited by Lord Hcde., F.N. B. 94. notd. And in the Year-Book,
14 Hen. 6. pi. 18., it is laid down by Paston J., " If a serjeant-at-law undertake to plead my
cause, and do it not, or plead it otherwise than I inform him, whereby I incur damage, an
action on the case lies ;" which is cited Bro. Abr. Action sur le Case, p. 69. Roll. Abr. Action
6ur le Case, 6, 7, 8., and Com. Dig. Action on the Case for Deceit, (A) 5.; and see Broke v.
Mountagu, Cro. Jac. 90. ace. Harrison v. \A\\m\ey,2\e?,.R.A?,S. per LovA Hardwiche ; and
Bradish v. Gee, Ambl. 229. In the above instances there seems to have been a breach of faith
in the counsel's conduct, and not mere negligence or unskilfulness. And in Fell v. Brown,
Peake's Ca. 96. Lord Kenyan held, that an action did not lie against a barrister for unskilfully
and negligently settling a bill in Chancery, whereby it was referred for scandal and imperti-
nence, and the plaintiff obliged to pay the costs. In this case the Court of Chancery may order
the counsel to pay the costs. Beames's Oril. 167. Mitford's Plead. 59. — In Turner v. Phil-
lips, PeakeCa. 122., where an action was brought against a counsel to recover back a fee paid
him, on the ground that he had not attended the trial. Lord Kenyan expressed himself strongly
against the action, and it was settled. This, however, is no authority that the plaintiff might
not have sued the counsel specially, showing a damage from his non-attend.ince, which
seems the proper remedy in such a case, and not an action to recover back the fee.||

[It was holden to lie against an attorney for not charging a Russell v.

person in execution at his client's suit according to the terms of Palmer,^

a rule of court, though it seemed to be rather an error of iud>j- i?o A'-^l^^'
, ' f , . _, JO See Pitt V.

ment than any actual negligence.] Yaldin, 4 Burr.

20G0. Lee V. Ayrton, Peake's Ca. 1 18.fl
II An attorney employed to purchase an annuity was held not Baikie v.
liable to his client for not advising him that the annuity was void ^^^""'ess
under the enrolment act, when the courts had not at that time de-
cided on construing the act in such a manner as to render it void.

An attorney is not liable except for crassa negligentia, not for Laidler v.
a misconstruction of an obscure rule of court. Elliott,

3 Barn. & C. 738.

If an attorney employed for the vendor of an estate, in taking Ireson v.
Counsel's opinion on the title, omit to state certain material deeds Pearman,
in the chain of tide, and wrongly state a party to be seised in fgg "'
fee when he was not so, and, in consequence thereof, the counsel
advises that the title is good, and he would have advised other-

I 2 wise

116 ACTIONS ON THE CASE.

wise had he known of the deeds omitted ; these facts are suffi-
cient to justify a jury in finding the attorney guilty of negli-
gence, so as to sustain an action.
Reeve v. Where an attorney for the plaintiff suffered the cause to

Righy, 4 Barn, be called on without previously ascertaining whether a ma-
& A. 20'-'. terial witness whom the plaintiff had undertaken to bring into
court had arrived, in consequence of which the plaintiff was
nonsuited, it was held, that iu an action for negligence it was
properly left to the jury to say whether he had used reasonable
care in conducting the cause; and the jury having found in the
negative, the court refused to disturb the verdict. |l

(G) Where an Action on the Case will lie for a Nui-
sance, and therein of the Inconvenience of multiply-
ing Actions.

Vide head of TT is clearly agreed, that for a common nuisance, which is an ||
Nuixances, offence against the public, either by doing a thing which

R ii Ah ^RR^* ^^^^ ^° '^^ annoyance of all the king's subjects, or by neglect-
110. 2 Roll. '"S ^° ^^ ^ thing which the common good requires, 7io action on
Abr. 140, 141. the case will lie; for this would create a multiplicity of actions.
Moor, 180. one man being as well entitled to bring an action as another;

1 ri°' }^l and therefore in such cases the remedy must be by indictment
9 Co. 113. 1 • f 1 1 • "^ ^

2 Brownl. 147. ^t the suit oi the kmg.

Vaugh.341. Cro. Eliz. 664. 3Mod.294. Garth. 191. 451. Ld. Raym. 486. Salk. 1 5. pi. 1 7.

Co. Litt. 5Q. But, if by such a nuisance I suffer a particular damage, as, if

Keb 847 '*^^' ^y stopping up a highway with logs, S^c. my horse throws me, by

s Jones, 157. which I am wounded or hurt, an action lies.

Vide the authorities, tupra. Vide Garth. 191. 451. Salk. 15. pi. 17. what shall be such a spe-
cial damage as will maintain the action.

Dev^'' ^' JJ"^" action does not lie by an individual for an injury sus-

2 Te°m R.667 *^'"^^ ^" Consequence of a county bridge being out of repair.

Bush V. If A. or his servants, in repairing his house, place a quantity

Steinman, of lime in the road whereby i?.'s carriage is overturned, A. is

404?'" answerable in an action on the case.

Matthews v. So, if the servants of a water-works company, in laying down

West London pipes, leave rubbish in the street, without any light or watchman

Water-works to warn passengers, and a coach driven by the plaintiff is thereby

5 Sp?403 overturned, and plaintiff's leg broken, the company are liable to

Jones V. Bird, »« action.

5 B. & A. 837.; and see 1 Stark. 189. ; but see Harris v. Baker, 4 Maule & S. 27.

H^Sam ^°' ^^ ^^ °^"^^ ^'^ ^ ^^"^^ ^° "^^ properly fence in his

3 Camp. 398. ^'^^^ ^° ^^ '°.^^ ^^^^ ^"^ passengers, and the plaintiff falls down
the area and is hurt, the owner is answerable ; and it is no excuse
that when he took the house, and as long back as can be remem-
bered, it was in the same state.
Haraond v. So, if the owner of a vessel which is sunk in a navigable river

f ?^°' c, . J^Slect to place a buoy over the wreck, and, in consequence, the
1 uuDp.515. barge of another strikes on it and is damaged, he is liable to

his

(H) For Conspiracy f oppressive Prosecutions^ <§'c. 117

his action, and this although he may have placed a watchman
near the spot to point out the danger. ||

Also, an action lies for continuing a nuisance; as, where for Salk. lo, pl.3.
erecting a nuisance 2 die Febr. the defendant pleaded a prior Carth. 455.
action brought for erecting a nuisance 20 die Martii, and a re- ^^- R^ay™- 370.
covery thereupon, and averred these to be the same nuisance
and erection: on demurrer the plaintiff had judgment; for
though he cannot have a new action for the same erection, yet
he may for continuing the same nuisance.

(H) Where an Action on the Case will lie for a Con-
spiracy, and oppressive Proceedings in Prosecutions
and Suits at Law.

TT seems agreed, that for a false and malicious prosecution for RolI.Abr. 112.

any crime (a), whether capital or not, by which the party Several cases

may be put in peril of his life, suffer in his liberty, reputation, ^^ this pur-

^ /7\ ^' /u • 4. c -i c pose, (a) How

or property (6), an action on the case m nature or a writ ot con- \^^ ^^^^ prose-

spiracy lies ; whether the prosecutor proceeded so far as actually cution must be
to exhibit an indictment, on which the party was acquitted, or false and raali-
jjq|.^ cious and with-

out probable
cause of suspicion, wrfe Cro.Eliz. 70. 134. Leon. 107. Kelw. 81. Moo. 600. Danv. 212., and
Salk. 15., where per Holt C. J., that this action is not to be favoured, because it deters men
from prosecuting ; and, therefore, if the grand jury find the bill, the defendant shall not be
obliged to shew a probable cause, but it shall lie on the plaintiiF's side to prove an express
rancour and malice. Qucere, How far the modern practice of granting a copy of the indict-
ment upon an acquittal, makes it necessary that such copy should be produced, in order to
prove it a false and malicious prosecution. And t«V/e Carth. 416. Ld. Raym. 374. 12 Mod.
208.211. 5Mod. 394.405.408. [A copy of the record of the acquittal granted by the court must
be produced in order to support an action for a malicious prosecution of a felony ; but in the case
of misdemeanors the practice is different. 1 Black. R. 385.] Hit seems not sufficient to produce
the original indictment, because it does not prove the caption. 2 Esp. Ca. 57. See 10 Barn. & C.
70. If the prosecution was before a magistrate the proceedings should be produced ; or if they
have been lost secondary evidence should be given. 2 Barn. & C. 496.|| {b) It has been holden,
that for exhibiting an indictment, which only affected a man's property, no action lay if the
indictment were insufficient, or the bill found ignoramits by the grand jury. Vide Danv. 208,
209. several cases put jaro. and con. And Salk. 15. in margine., that in an action on the case for
maliciously procuring //. to be indicted for exercising the trade of a badger without licence,
'pcr quod he was put to great expense ; in which it was agreed, that the indictment was insuffi-
cient; it was resolved by Parker C.J. and the whole court, upon great consideration, that
there was no reason for this diversity between a malicious prosecution upon a good indict-
ment and upon a bad one; and that this action will lie as well for damages by expense, as by
scandal or imprisonment, though the indictment be insufficient. Hil. 12 Ann. Jones and Gwin.
10 Mod, 148. 214. [Gilb. Gas. 185. Stra.691. 977. Ca. temp. Hardw. 54. 4 Term.R. 247. ace.]
||This was confirmed in Pippet v. Hearn, 5 Barn. & A. 634. The mere return o( ignoramus, where
the indictment contains no scandal, and where the defendant has suffered no imprisonment, no
special damage, will not of itself support the action without proof of express malice. Byne v.
Moore, 5 Taunt. 187. Sed vide 4 I3arn. & C. 25. Nor can malice be inferred so as to sustain
the action from the mere fact of the plaintiff having been acquitted for want of the prosecutor's
appearing when called for. Purcell v. M'Namara, 9 East, 561.; and see 14 East, 502. 1 Camp.
204. If some of the charges in the indictment are maliciously preferred, though others are
not so, the action lies. Reed v. Taylor, 4 Taunt. 616. And it is no answer that the defendant
did what he did by the advice of counsel if the opinion was ill-founded, or if the facts were
improperly stated to counsel. Hewlett v. Crutchley, 5 Taunt. 277.; and see 2Barn. &C.
695.11 [^'^6 action may be brought by a husband for the expense of defending his wife.
2 Stra, 977.]

I 3 [If

118 ACTIONS ON THE CASE.

Canh.4i6. C^^ '^® action be brought against several, and one only be found ;

Bull. Ni. Pri. guilty, it is sufficient; for there is a great difference between the ,
M. But see a action on the case in the nature of conspiracy, and the writ of
doubt in this conspiracy at common law; for in this case the damage sustained .
cane by Suund- • ^,' -^ i r^i »•
en, where the is the ground of the action. ,

declaratioo stated the injury to have been committed per contpb'ationem inter eo» habittttiu-;
Saund. 230. In actions for prosecutions or oppressive proceedings, it is indispensably neces-
•ary to make out two grounds: malice and want of probable cause. 4 Burr. 1974. From the
latter the former may be implied, but not e conveno. ||In general the plaintiff must give some
evidence of the want of probable cause ; but as this is evidence of a negative, very slight evi-
dence is sufficient to call on the other party to shew the affirmative. See Cotton v. James,
1 Barn. & Adolph. I33.|| Where there had been a condemnation of goods by sub-commissioners
excise for not entering and paying the duties, which was afterwards reversed by the commis- \
sioners of appeal, it was adjudged that an action for a malicious prosecution did not lie against -
the informer, for the judgment of the sub-commissioners shewed that there was a foundation
for the prosecution. 1 \Vils. 232. 1 Term R. 500. ||See 1 Barn. & Adolph. 133.|| Inactions of
this kind the plaintiff must allege that the original suit, wherever instituted, is at an end.
Dougl. 205. ; for otherwise the point would come to be tried too soon and disorderly. Yelv.
117., it must be legally at an end; and, therefore, in an action against a justice for an illegal
commitment on a supposed charge of felony, the court held an allegation that the plaintiff
was discharged from bis in)prisonment, to be insufficient; because there are various ways by
which a discharge may be had, without putting an end to the suit : it ought to have been shewn
how dischayged. 2 Term R. 225. Stra.114. Hob. 206. 266. 10 Mod. 245. So, in an action
for maliciously holding to bail, it must be shewn what is become 'of the original action.
iSalk. 15. Dj^. 285. If it has been abandoned, it should seem that an action will lie, for
abandonment is an indication of its being false and hopeless. W. Jones, 93. ^Sed qu. and ;
vide Sinclair v. Eldred, 4 Taunt. 7.|| So, where the plaintiff suffered himself to be nonsuited. '
Bull. Ni. Pri. 13. (4th edit.) But a nolle prosequi by the attorney-general is not such a
termination of a criminal suit as will authorize an action. 6 Mod. 261. See 10 Mod. 219.
Gilb. ('as. 185., &c. Nor is a stet processus. Wilkinson v. Howel, 1 Moo. & Malk. 495.||
Qu. Whether the defect of stating the original action to be determined, may not be cured by
a rerdict or plea in bar? Rayra. 418. 2 Keb. 456. 753. 5 Keb. 781. Saund. 229.

Austin V. II Where there are mutual dealings between two parties, and

^R'"*'"xr r ^'^"^^ known to be due on each side of the account, if one party

i39^™and see *^^^^^ ^^^^ °^''^^' ^°^ ^''^ amount of one side of the account, with-

5 Barn. & A. ^."'^ gi^'^o credit for what is due on the other, the arrest is mali-
513. ; sed vide cious and without probable cause, and an action may be supported.

2 Camp. 594.

Nicholson v. Where A. arrested B. on the 10th December, and was ruled to

4&Iin''&C ^5^'''^*"^. "" ^I'e 17th., and filed a declaration on the 24-th, and

2j "• • discontinued the action on payment of costs on the 31st, it was

«Dow.&R.i2.j ^^^^^f t^at the circumstances were sufficient jprima facie evidence

and see Went- of malice and want of probable cause.

worth V. Bulien, 9 Bam. & C. 840.

Berry v. If the sherifTs officer having a writ against A. send him a

6 ftJ!r& C ^^'^^'^^ *° ^^ ^ t™^ ^" call and give bail, and A. accordingly

528. ; and see *"t"^? ^"^^ ^'^^ ^^''' ^^'^ ^^ "° ^^'^'^^^ 5 and an action for a

2 New R. 211. malicious arrest does not lie, although the party suing out the
1 Moo. fi writ have no cause of action.

Malk. 244. ; sed vide sCarr. & P. 605.

MwkiSo^h A^^ • ^^f defendant can show that in making the arrest, he acted

3 BwD. & c! ^fJ^f on the opinion of counsel of competent skill and ability,
693.; and sec "."J' believed that he had a good cause of action against the plain-
ly*** ^** ^ u ^°^^^ ^ ^°°^ defence to an action for a malicious arrest.
S02. But where it appeared that the party was influenced by an indi-
rect

(H) For Conspiracy, 02)presshe Prosecutions^ ^c. 119

rect motive in making the arrest, it was held to be well left to the
jury to say whether he acted bona Jidc on his counsel's opinion,
and beheved that he had a good cause of action.

If the plaintiff' in an action for malicious prosecution, prove a £)avis v
case which in the opinion of the judge shows that there was no Hardy,
probable cause for the indictment, and the defendant then calls a 6 Bam. & C,
witness, who proves an additional fact, which in the judge's ^^^'
opinion shows a probable cause, and there is no contradictory
testimony, and nothing in the demeanour of the witness to im-
peach his credit, the judge is not bound to leave the fact to the
jury, but may act upon it as a fact proved, and nonsuit the
plaintiff.

The plaintiff may maintain the action, although he has ob- p, , ,
tained a criminal information. Ij Barlow

1 Ry. & Moo. 275.

If a justice of peace malitiose et invide macJiinans J. S. de bonis, Windham v.
nomine, fama et vita deinrivare, directs his warrant to several con- CI ere, Leon,
stables to apprehend J. S. alleging, in his said warrant, that J. S. *87. Cro.
was accused before him for steahng an horse ; whereupon he is ^ wp|?^ *
arrested, and detained till he enters into bond for his appearance ; of Windham
whereas he was not accused, nor stole such horse ; an action will v. Clere is not
lie; for though the justice (a) is excused when upon a false ac- jaw; for the
cusation he sends out his warrant, yet it is otherwise where he ""i;"ediate act
makes it out without any accusation at all. (b) ment pro-

ceeded from the justice ; and therefore the action should have been trespass, and trespass only ;
but where the act of imprisonment by one person is in consequence of information from ano-
ther, there an action on the case is the proper remedy, because the injury is sustained in con-
sequence of tlie wronjjful act of that other person. Morgan v. Hughes, 2 Term R. 231.] ||See
2 Chitt. 504, 1 Dow. & R. 97.11 (b) If a justice of peace procures some witnesses to appear
and give evidence upon an indictment, that is but his duty ; and though his name was indorsed
upon the indictment to give evidence, yet this made him no prosecutor, and so no action lies
against him for a malicious prosecution. Vent. 47. 2 Keb. 572.

[An action on the case is the proper remedy against excise Bootv.Cooper
oflficers who enter a house under a legal warrant to search for ?^"^ another,
concealed goods, when there are none.] ^' ^ 2 Term

R. 535. See the case of Bostock v. Saunders and others. 2 Black. R. 912. 3 Wils. 434.
where the Court of Common Pleas, after hearing two arguments, held, that trespass would lie
in such a case.

II So also for maliciously suing out a commission of bankruptcy Cotton v.
or lunacy. II James,

I Barn. & Adol. 133. 1 Gow. Ca. 50.

An action on the case lies against churchwardens, for that they VideRoW.
falsely and maliciously, to the intent to draw the plaintiff within Abr. 112. and
the censures of the ecclesiastical court for adultery, presented him ^^ r c^se''^'ill
there, upon a fame of living in adultery with A. S. not lie for an

ecclesitistical scandal. Sed qu. If it will not lie for the expense, trouble, and vexation attend-
ing defence ?

If yi. was churchwarden of J5. and at the end of the year gave Rayra.4i8.

up his account to his successor, and vet yl. is falsely and maUci- F, 7?"^^. ^f^',
1 -^ 1 I i-w . 1 T-. 1 • . i*v-i 1 . b.C adjudged,

ously cited byZ). into the Ecclesiastical Court to render an account, ^i^^ plaintiff

and at the request of Z). he is excommunicated for not rendering declaring that

J 4, lip the defendant

120 ACTIONS ON THE CASE.

knowinp the "P ^»s account, an action lies against D. notwithstanding this
plaintiff had sentence was given by the judge. .„^ ,„s

before made up his accounts, which were approved by the parish, &c. Vide Hardr. 194, 195.
S. C and a long argument.

Ackcrlcy v. [j An action on the case cannot be maintained against the judge

** "m'Tx « of an ecclesiastical court, for excommunicating the plaintiff for
3 Maule & b. j|i5oi,eying a citation of the court, if the judge has jurisdiction of
the subject-matter, and if no malice appears, notwithstanding the
citation by which the plaintiff was cited be void, and the proceed-
ings thereon have been set aside on appeal.
Beaurain v. But if the judge excommunicate a party for disobeying an order

Sir W. Scott, which the judge has no authority to make, or if the party has not
3 Camp. 387. ^^^^ previously served with a citation or monition, or had notice
of the order, the action lies against the judge, though there is no
pretence of malice. ||
Salk. 14. But it must be observed, that there is a great difference between

Hob^266° a false and malicious prosecution by way of indictment, and bring-
3 Leon. 138. »ng a civil action ; for, in the latter, the plaintiff asserts a right,
Cro. Jac. 432. and shall be amerced pro /also clamore ,- also the defendant is
entitled to his costs; and therefore, for commencing such an
action, though without sufficient grounds, no action on the case
lies.
Sid. 424. But, if the plaintiff declares, that he being arrested in Middle-

s Keb. 546. sex at the suit of the defendant, and the defendant, intending to
Lcy^275 detain him in prison, /also et malitiose dixit to the sheriff of Mid-

3 Lev. 21 1. dlesex, that the plaintiff owed him 500/. requiring him to take
S. C. cited. bail accordingly, per quod he was detained in gaol several days ;
^Hj * *■ ^' ^' ^"^^ action lies, because of the special damage sustained by the
crewhsTerm P^'^^'^y ^n this false affirmation.

R, 185. S. P. IJWthout the ingredient oi malice this action cannot be supported: moTtce
must be averred and proved. Scheibel v. Fairbain, 1 Bos. & Pull. 588. Gibson v. Chater,
2 Bos. & Pull. 129.- With that ingredient, mixed with falsehood, it will lie for holding to
bail in an inferior court :is well as in the courts of Westminster Hall, either where the inferior
conrt has not cognizance of the cause, the defendant knowing that it has not, Goslin v.
Wiicock, 2 Wils. 302. or, where the sura actuidly due would not authorize an arrest in it.
Smith V. Cattle, Id. 376.H But it is not enough to declare generally that he brought an action
uainst him ex malitid et tine causa, per quod he put him to great charge, &c. but he must shew
tne grievance specially ; jjhe must shew that the original suit is terminated ; judgment of
non pros in the original action is not of itself proof of malice. Sinclair v. Eldred, 4 Taunt. 7.\\
Saund- 228. Vent. 12. 19. 86. Danv. 196. 1 Salk, 15. pi. 6. Ld. Raym. 503. 12 Mod. 273.
||2 Term R. 232.1|

R \'i* Ah*'' ^^ ^ Stranger brings an action against A. in the name of J. 5.

S.V Marih^' ^^'^°"^ the consent of J. 5. an action on the case lies against
47 8. P. Cro. liim-(«)

t • ' ^«?* ^°? ^'" *^^'"*^ ^^y ^ remedy upon the 8 Eliz. c. 2. But qiuere where there are several
plaintiits, and one of them gives his consent. Cro. Eliz. 236. 2 Sid. 162. If upon an issue
botween A. and B., a stranger that was not returned of the jury, causes himself to be sworn
m the name of one that was returned of the jury, and a verdict is given for B., A. may have
»n acuon upon the case against the stranger. March, 81.

Skelind''* ?^ ^' ^"^^^^ ^ petition to a committee of parliament, ap-

Kh^. Mod.58. pointed for the examination of public grievances, and therein
S. C. 2 Kcb. charges 2?. being a doctor of law, and vicar general to the Bishop
361. 4«2. 466. of L. with several great offences, as extortion, S^c. in his office;

and

(I) Where Case lies, though there is another Remedy. 121

and for the better manifestation of these grievances, causes the g^g gg4 goj,
said petition to be printed, and to be delivered to several of the 832. S.C.Lev.
members of the said committee ; yet no action upon the case lies ; 240. S. C. Sid.
for this printing and delivering of the case as aforesaid, is accord- ^^' . j
ing to the order and course of proceeding in parliament. Libel znASlan'

der.\( [Aliter, if it had been dispersed abroad before it had been presented. Hardr. S. C.
2 Keb. 832. 1 Hawk. P. C. c. 73. $ 8. 12. 15. Case will not lie for words spoken or sworn in a
legal and judicial way. 2 Burr. SIC] If a man brings a writ of forgery against a peer, &c. and
the defendant is found not guilty, yet shall he not have scandalum magnatum, and lay the charge
contained in the writ to be a scandal. Roll. Abr. 34. Moor, 38. Hetl. 55. Hob. 266. No
action lies against a witness for perjury, in giving his evidence in a cause. Vide Danv. 195.

In case, the plaintiff declared that the defendant maliciously Carth. 189.
levied a plaint in London, and prosecuted the plaintiff thereon, lempiev. lui-
ubi revera the cause of action did arise in D. in Kent, out of the show. 194.
jurisdiction of the court o^ London; after verdict for the plaintiff, 254. Cases,
the court inclined that the action would not lie ; for the plaintiff S. R. 4 S. C.
might have pleaded to the jurisdiction, and if they had refused ?:"' noresolu-
his plea, he might have applied for a prohibition. said' that it

was fit to have the opinion of all the judges ; for that such action was never held to lie till
^or^A's time. Vide \ent. 669. 2 Jones, 214. Hob. 205. Cro. Jac. 667. Sid. 465. Sand.
221. 4 Co. 14. No action lies for suing an attorney in an inferior court; for who knows
whether he will insist on his privilege, and if he does, he may plead it. Mod. 209, 210. per
cur. [It is now settled that an action of the case will lie for maliciously suing a person in an
inferior court, when that court has no jurisdiction of the cause : and the Court of Common
Pleas, after due consideration, refused a new trial in such a case, though the declaration did
not allege, as it ought to have done, that the defendant knew that the inferior court had
no jurisdiction. 2 Wils. 302.]

[An action on the case is maintainable for a malicious abuse of Sutherland y.
delegated authority of the highest nature ; as, where the governor Murray, Sit-
and vice-admiral of one of his majesty's islands suspended the ,^;^^/er after"
judge of the vice-admiralty court from the exercise of that office, Easter, 1783.
maliciously and without any reasonable cause. cor. Eyre B.

, , , . 1 Terra R.538.

But this action will not lie for a malicious prosecution before a Johnstone v.
naval court martial, for an offence cognizable therein (a) : nor Sutton,
for delaying to bring an officer under arrest to a court-martial, it 1 Term R. 493.
being a military offence. Nor will it lie (b) against a command- > \ 7 th"'
ing officer for an improper exercise of his power, Jlagrante hello, defendant has
and out of the British dominions.] not been tried

for it by a
court-martial, (b) Barwis v. Keppel. a Wils. 314.

11 An action on the case does not lie to recover damages against r>.,„.„„ „
11 r. 1 1 • • rt» • • • „ ^ ^ I'urton V.

the lessor ot the plaintm in a vexatious ejectment. 1) Honnor,

I Bos. & P. 205.

(I) Where Case will lie, though the Party injured has
another Remedy.

TF one slanders my title, whereby I am wrongfully disturbed Allen, 3. ||5Icrf

in my possession, though I have remedy against the tres- ^^. V'cars v.
passer, yet I may have an action against him that caused the g ^^ / ^^^
disturbance. 2 Bos. & Pull.

284. and tit. Slander^ C.||
If a man stops a water-course, per quod his neighbour's ground Dyer, 250. in

l» ACTIONS ON THE CASE.

margitie. is surrounded, his neighbour may have an assize, or action on

Leon. 247. the case, at his election.

verts totum curtum aqiue from my water-course to my mill, though I may have an assize tor
this, yet 1 may have an action upon the case, at uiy election. Roll. Abr. 104.

Ley 130 by ^^* copyholder in fee surrenders a messuage to the use of one
Penlerton for life, the remainder to another in fee, and the defendant (the
ami Lfvinz husband of the tenant for life) pulls down part of the messuage,
cord. Wind- ^^^ |jg j„ (.he remainder may have an action on the case against
haiH and . .

Charlton. And '^^^' ^ , ,

per Fcmbcrlon and Levinz, where Coke says, that before the statute of Gloucester the lessor
was without remedy for waste done by his tenant ; that must be intended according to the
subject matter of which he was speaking, scUicet, that he had no remedy by action of waste :
and Femberton said, that without doubt at this day the lessor may wave his remedy by action
of waste, and bring an action on the case.*

• Where the estate of any one in remainder or reversion is injured by the tenant in pos-
session or any other person, an aclion on the case, in the nature of an action of waste, may be
maintained.

Kinlyside v. [An action on the case in the nature of waste, as well as an

Thornton and action of covenant, will lie against a tenant for years after the

2Bi2r.iiii. ^'^P'''^^'®" "^^"^ '^^™-^

R 11 Ab 108 ^^ cestui que use at common law had requested his feoffees to
s Bulst. 336. make a feoffment to J. S. and they had refused, no action on the
Roll. R. 125. case lay against them, but his remedy was in chancery only.
Carth. 224. If a parson is guilty of dilaj^idations, and after takes another

3 Lev. 268. benefice, by whicli his former becomes void, his successor may

^*^*iio ^^* have an action on the case ajjainst him ; thouf^h it was objected,
116. See *u ^ I • A •**!,• V 1 *

2 Term R. '"^^ "'^ proper remedy was in the spiritual court.

630. Young V. Munby, 4 Maule& S. 183. Browne v. Ramsden, 2 Moo. Gia.]} [This action
lies for the neglect of repairing a prebendal \\o\ise by a succeeding prebendary against the pre-
decessor, or his personal representative, as well as in the case of parochial preferments. Rad-
cliffe V. D'Oyley, 2 Term R. 650. 3 Wooddes. 206. n,] jjln Gibson v. Wells, 1 N. R. 90. it is
holdea that case will not lie for permissive waste.|| Where an action on the case lay for a
legacy in CVomu;c/fs time. Raym.25. 2Sid. 21. 85. Keb. 116. jjAn action at law does not
lie for a pecuniary legacy, Decks v. Strutt, 5 Term R. 690. ; but lies to recover a specific chattel
bequeathed, after the executor has assented to the bequest. Doe v. Guy, 3 East, 120.1|

Roll. Abr. no. \{ A. and his predecessors have used time out of mind to find
wcre'a public ^ chaplain to sing divine service, and to perform the sacraments
chapel. Roll. ^"^ sacramentals in the chapel of B. within his manor of D. for
Abr. 1 10. Cro. B. his servants and family, and he does not find a chaplain ac-
EUz. 664. cording to the custom; B. may have an action on the case against

bid. 34. An Yiim. ^ ^

action on the

case lies against a parson for refusing to give J. S. the sacrament, because a man is bound to
receive It upon a penalty. Per Keb. 947. ^\A. oA. dubitatur. Against a bishop for not taking
caution of a party excommunicated. Raym. 226. 2 Inst. 623. Against an ordinary for
refusing to grant administration. Carth. 126. [Against an archdeacon for refusing to induct.
F.N.B. 47H. Fortesc. R.291.]

SmSr' • ^^^^ ^^^^ ^'^ ^^^ ^^^^^^y ^"^ maliciously suing out a commis-

2 WUs. 145. ^^°" °^ bankrupt, though the chancellor has power under the

3 Burr. 1418. statute of 5 Geo. 2. to give 200/. damages.]
||Sce Cotton v. James, 1 Barn. & Adol. 128.|1

Themen\n*. ."^' 1'®^ "P°" *^^ ^'^^"^^ of 6 Geo. 1. c. 16. § 1. by the part^
grieved to recover damages against the inhabitants of the adjoin-
ing

(K) Where Case lies, though Wrong-doer he punishable, 123

ing township for trees, coppice, and underwood, unlawfully and habiting the
feloniously burnt by persons unknown; though the clause directs u^Ij ^^e 1 1
the party grieved to recover his damages in the same manner nEast 349.'
and form as given by the statute of 13 E. 1. st. 1. c. 46. for
dikes and hedges overthrown by persons in the night; upon
which the usual course of proceeding has been by the writ of
Noctanter. ||

(K) Where Case will lie thoiigh the Wrong-doer be
punishable criminally.

TT seems to be the better opinion of the books, that a person g^jjg ^^^^

guilty of felony, and pardoned, or burnt in the hand, may Yelv. 89, 90.
be proceeded against in a civil action at the suit of the party Jones, 147.
injured ; for when the party is prosecuted, there can be no (a) (}^^' ^'**'
inconvenience in allowing the action, and the criminal prosecu- ^-q^ ^^^ ^^ '^'
tion ought to be no bar to it; for why should he not answer in brought whilst
damages to the party whom he hath injured, as well as be made the party is
an example of for the sake of the public, whom he hath """ei" indict-
/v. J J o * ment for the

offended.'' same crime,

for if that were allowed, it might hinder all exemplary punishment. Stile, 346. [See 4 Term
R. 332, 333.] ||After an acquittal of the defendant for a felonious assault on the plaintiff by
stabbing him, the plaintiff may maintain trespass to recover damages for the civil injury, if he
be not shewn to have colluded in procuring the acquittal. Crosby v. Leng, 12 East, 409.||

In case against husband and wife, the plaintiff declared that Sid. 375.
the wife malitiose^ 8fc. affirmed herself to be unmarried et strenue ^?f^^ ^
requisivii him to marry her; to which affirmation he giving credit, ^^^ ^^J g q
married her, being then the defendant's wife, by which he was 2Keb.399.
put to great charge, injured in his reputation, and greatly troubled And note ;
in his conscience ; and the court held, that the ground of this PfT ^"««'^'^
action being the conversation and contract of the wife, could not does^not'lie •
bind the husband. because the'

marrying of the second husband is felony. [See St. 1. J. 1. c. 11. That if seven years have
elapsed without the former husband or wife having been heard of, the guilt of felony is not in-
curred. However, where a man falsely pretending himself single, only solicits, but does not
actually contract a second marriage with the plaintiff, and she sustains special damage in con-
sequence of such deceit, as, by rejecting other offers, there can be little doubt of her right to
sue this action. 3 Wooddes. 201, 202.]

But, where the plaintiff declared that she was a virgin of good Skin. 1I9.
name and fame, and sought to for marriage by J. S., that the
defendant, pretending himself to be a single person, made love
to her, and married her; when in truth he was married to another
woman, ^c. whereby she became of less credit, Sfc the court held
that the action lay.

[ 124 ]

AFFIDAVIT.

AN affidavit is an oath in writing, signed by the party deposing,
sworn before, and attested by him who hath authority to
administer the same. As most motions and orders of court are
<rrounded on affidavits, it seems impracticable, and indeed un-
necessary, to instance in what cases they are to be made use of,
or when they may be said to be defective, short, or evasive ; this
being a matter of practice, and few things relating thereto being
thought worth reporting.

We shall, however, under this head, set down what we find
relating to

(A) The taking and filing of Affidavits.

(B) Where an Affidavit is necessary.

Style Pract.
Rt^. 78.

S9Car.2. C.25.
Byihei6&i7
Car. 2. c. 9. the
chancellor of
the duchy of
Jjoncatter may
empower per-
sons to take
afiidavits. [By
the 4G.3.
c 21. a similar
power is giren
to the chan-
cellor and jus.
tices of the
Court of Pleas
in the county
Palatine of
Jiurham].

(A) The taking and filing of Affidavits.

II (See Tidd's Practice, c. 19. (9th ed.) and Beames's Ord.)|l \

A FFIDAVITS were only to be taken by some judge of that
court in which they were to be made use of. But now,
" By the 29 Car. 2. c. 5. the chief justice, and other the justices
" of the Court of King's Bench, or any two of them, whereof '
" the chief justice to be one for that court ; the chief justice of
" the Common Pleas, and the rest of the justices there, or two of
" them, whereof the chief justice to be one for that court ; and
" the lord treasurer, chancellor, and barons of the Exchequer,
" or two of them, whereof the lord treasurer, chancellor, or
" chief baron to be one for that court, may by commission or
" commissions under the seal of the said respective courts, from
" time to time, as need shall require, empower persons in the
*' several counties to take affidavits concerning any thing de-
" pending or concerning any proceedings in the said courts, as
" masters in chancery extraordinary use to do ; and any judge
" of assize in his circuit may take affidavits concerning any
" thing depending, 8[c. as aforesaid ; which affidavits shall be
'* filed in the several offices of the said courts, and be made use

« of

(A) The taking andJiUng qf Affidavits* 125

" of as othei* affidavits taken in the said courts ; and all persons
" forswearing themselves in such affidavits shall incur the same
" penalties as if they had been taken in open court ; the persons
** taking such affidavits shall receive only Is. for so doing, be-
** sides the king's duty, which duty shall be paid to the proper
" officers in the said courts, before such affidavit be there filed
*' or made use of."

II By rule of H. T. 3 & 4< G. 4'., no commission for taking affi- i Barn. & C.
davits can be issued to any person practising as a conveyancer, 288. 2 Dow.
unless such person be an attorney or solicitor. *''^'

And by rule of E. T. 4 G. 4., attornies and solicitors of the i Barn. & C.
great session in Wales, and the counties palatine of Chester, ^^ fvo **
Lancaster, and Durham are within the above rule.||

[By a rule of the Court of King's Bench E. 31 G. 3. it is HSee 8 Price,
ordered, " That where any affidavit is taken by any commis- ^^^•''
*' sioner of that court made by any person, who from his or her
*' signature appears to be illiterate, the commissioner taking
*' such affidavit shall certify or state in the jurat, that the affi-
*' davit was read in his presence to the party making the same,
" and that such party seemed perfectly to understand the same,
" and also that the said party wrote his or her signature in the
*' presence of the commissioners taking the said affidavit."

Affidavits taken before a person who is solicitor in the cause 3 Atk. 815.

are not allowed to be read either at law or in equity. 5TermR.405,

^ •' H9 Price, 88-11

||Nor can affidavits be received which are sworn before the „ Vaisev
attorney of the party, or his partner. i W\ce, lie.,'

Hopkinson v. Buckley, 8 Taunt. 74. ; and see 5 Moo. 325,
But an affidavit may be taken before the clerk of the attorney 8 Term R. 638.
in the cause, if the clerk be empowered to take affidavits.

It may be taken before the party's own attorney, if in the pi
country, if the agent in town be the attorney on the record. Cooper,

5 Taunt. 89. ; and see 8 Taunt. 435.

Affidavits not entitled " in the King's Bench," and sworn be- R- 1; ^^^^>
fore A. B. a commissioner, Sfc. without stating him to be a com- Ir^^Kennett
missioner of that court, were not allowed to be read ; but &c, y. Jones,'
affidavits sworn in court or before a judge of the court, though 7TermR. isy.
not entitled " in the King's Bench," were read.||

If affidavits taken before commissioners in the country, ac- 2 Salk. 46i.
cording to the above statute, be expressed to be in a cause P ^"
depending between A. and B. and there be no such cause in
court, they cannot be read, because the commissioners have no
authority to take them, and there can be no perjury; otherwise,
if there be a cause in court, and this concerns some collateral
matter.

[If an affidavit in a cause have no title, it cannot be received, 2 Term R. 644.
though the adverse party is willing to wave the objection.]

II So if . be not entitled in any court, it cannot be received. Osbom v.

*^ Tatteson, 1 Bos. &Pull. 271.

An affidavit to support a rule nisi for staying proceedings on Roberts v.
a bail-bond, should be entitled in the action against the bail. Giddins,

But,

12G AFFIDAVIT.

1 Bos. & Piill. But, where no action against the bail is commenced, as, if a mo-
337. tioii be made to cancel the bail-bond, the affidavit must be en-

titled in the ori<rinal action; for unless it be entitled in some
action, no perjury can be assigned upon it.||
iStra.704. An affidavit upon a motion for a certiorari to remove an

indictment is properly entitled, " t/ie King v. A. B, (the de-
fendant.) "
Bevan v. The affidavits on which to apply for an attachment for dis-

Bevan.sTerm obeying an award, where the submission is made a rule of court

R, 601. The under the statute, need not be entitled in any cause ; but those
same practice • .

prevails in m answer n.ust.

affidavits to move for informations. Rex v. Pierson. Andr.SlO. sStra. 1107. S. C.
Bainbridgev. || But neither need be entitled on a motion to set aside the
Houlton, award. II

5 East, 21. "

Wood V. Affidavits for attachments in civil suits are to be entitled with

Webb, 3 Term \]^q names of the parties, but as soon as the attachments issue,
R. 25j. bo, 1 ^j^g j.j jg ^^ ^g named as prosecutor.

S ranted, o r

oiigh not issued. 7 Term R. 439. Rex v. Sheriff of Middlesex, 6 Term R. GO. Whitehead
V. Firth, 12 East, 165. ||Siich title is sufficient without naming the cause, though it is conve<
nient to do so. 5 Barn. & C. 389.|| '

Rex V.Robin- ||An affidavit on a motion for leave to file a criminal inform-
rT'^^^Coi" ^'^'"" ought not to be entitled; and if it is, it cannot be read.
6TeriDR.387. ^"^ ^'^^ affidavits produced on shewing cause against the rule

may or may not be entitled ; all affidavits made after the rule is

made absolute mu.st be entitled.
Ex parte In moving for a rule nisi for a certiorari the affidavit must

6 c'^267^"'^"" "°' ^^ entitled in any cause.

Kelly V. Wro- Affidavits in support of a rule to set aside proceedings on a
ther, 2 Chitt. bail-bond may be either entitled in the action on the bond, or in

109. Sedvide ^j^^ • j^^
1 Bmg. 142. o

7 Moo. 600.

Gandell v. Where a motion is made in a cause removed to the K. B. by

Rogier, ^rit of error, the affidavit must be entitled in the cause in error.

4 Bam. & C. 862.

Sowerby V. I" entering up judgment on an old warrant of attorney, the

Woodroffe, affidavit may be properly entitled in a cause.

1 Barn. & A. 567. r r j

K^ar" T*^^ Christian names as well as surnames of the parties must

7 Term k 661. ^ inserted in the title of an affidavit produced to shew cause
against a rule.

Steyner v. An affidavit, the tide of which styles the plaintiff « assignee,'*

Cottrell, without more is bad.

5 Taunt. 377.

Doe V. Want, ^"^^ ^° ^^^° ^^^^^ names of all parties are not stated. A. B.
s Moo. 722. " ^nd others," is insufficient. ||
Bullman v. Callow, l Chitt. 727.

2 WUs. 571. Where an affidavit has been read and filed, it cannot be taken

off the file.

l?TvL'n'of^' Affidavits made for one purpose may occasionallv be used for
iermK..85. another. Thus an affidavit taken before a judge" at 7iisi prius

upon

(B) Where an Affidavit is necessary. 1^7

upon an information out of the King's Bench, and afterwards

returned into that court and filed, was admitted as a ground on

which to grant another information, the court considering the

authority of the judge at nisi 2^^'ius in that case as an emanation

of their own. So, affidavits upon wliich a defenilant hath ob- CphmoU*

tained his discharge in one cause, have afterwards been admitted 4TermR.285.

for a similar purpose in another cause.

||The courts of this country will take notice of affidavits sworn
before foreign judicatures, provided they are properly authenti-
cated.

Where the affidavit is taken before one of the judges of the ^ ^"^^^ ou
superior courts in Ireland, an affidavit that the signature is in his 3ia(.k. 275.
hand-writing, has been admitted as a sufficient authentication of
it. But, with resjiect to ordinary magistrates, it is usual to re-
quire the attestation of a notary public. In a late case («), how- (rt)Dalmer v.
ever, the Court of King's Bench received an affidavit purporting ^^p"^'*'^'
to be sworn before the high bailiff and chief magistrate of the 251 . but see
district of 7Joz^i^/fir5 in ihe Isle of Maji, upon oath made before the Riddle v. Nash,
court here, that the deponent believed the signature to be of the 8 Moo. 632.
proper hand-writing of that magistrate.

Affidavits sworn before a justice of the peace in Scofla?id, are Tumbull v.
admissible in a cause in the K. B. if the handwriting of the justice Moreton,
beauthenticated.il 721^ g^^^-^

19 Ves. 345. So, also, before a baron of exchequer in Scotland. 1 Jac. & W. 296.

(B) Where an Affidavit is necessary.

'T^HE law and practice of the courts require, that on all motions Vide the seve-

for an information, attachment, complaint against any officer ral heads. [By

for an offence not committed in the face of the court, for a new ^^fj*'' °^'^^

trial, relating to the serving and returning of writs or processes, jj. jg enacted

4c oath or affidavit be made of what is affirmed, that the judges that the so-

may be satisfied, as well of the truth thereof, as of the reason- lemn affirm-

ableness of granting relief when made out. ^f"^" ?"'* ^^'

° *^ claration ot a

Quaker shall be accepted in all cases, except in a criminal cause, instead of an oath in the

usual form. See too 12 G. 2. c. 13. 22 G. 2. c. 46.]

Also, by acts of parliament, affidavits are made necessary, as
by 4 Ann. cap. 16. § 11. in the case of dilatory pleas; and by
the 12 Geo. 2. cap. 29. to hold to special bail.

II As a general rule the court requires in all petitions under acts 2 Younge & J.
for local improvements, ^c. for payment of money out of court, ^^^^
that the parties applying shall by affidavit shortly verify their title,
and state that, to their knowledge and belief, no other person has
any title to, or claims any interest in the estate. ||

If a person exhibits a bill for the discovery of a deed, and prays Q\^Q;{y q^ j i^
relief thereupon, he must annex an affidavit to his bill, that he 23i.Vern.i80.
has not such deed in his possession, or that it is not in his power 247. 3 Chan.
to come at it; for otherwise he takes away the jurisdiction of the S' **' pP'^''*
common law courts, without shewing any probable cause why he g q.^ \^^^
should sue in equity. 15.' 2 Eq. Ca.

Abr. 13. 2Freem. 7. 2 P. Wms. Rep. 541. Prec. Ch. 536. sAtk. 17. 132. Con/r. 1 Yern.
59. evidently a mistake.

But,

1«8 AFFIDAVIT.

V«jrn. 180. But, if he seeks discovery of the deed only, or that it may be

«<T- produced at a trial at law, he need not annex such affidavit to

his bill ; for it is not to be presumed that in either of these cases
he would do so absurd a thing, as exhibit a bill, if he had the
deed in his possession.
King V. King, [It is also unnecessary in the case of a bill for discovery of a
Most'ly, 192. cancelled instrument, and to have another deed executed, for if the
plaintiff had the cancelled instrument in his hands, he could make
no use of it at law, and the relief prayed is such as a court of
equity only can give.]
Abr.in Eq. 14. Also, if he sets forth the whole circumstances of his case, and
Prcc. Ch. 536. p^ys general relief, the prayer of relief shall be applied to the
GUb.^Hist. discovery only.

Philips V. [If a bill be filed for examining a material witness upon the

Carew, 1 P. ground that his evidence is likely to be lost by death or departure
Wms. 117. from the realm, there must be an affidavit annexed to it, of the
Ferrers % P*^ circumstances from which the danger of such loss is apprehended.
Wms. 77. So, if a bill be filed for perpetuating the testimony of a witness
1 Atk. 450. upon the ground of his being the only witness to a particular
Mitf. Eq. pi. point, and his evidence being of the utmost importance, an affi-
davit of the witness himself should be annexed, to it. The prin-
ciple on which it is required in these cases to annex to the bill an
affidavit of the circumstances which render the examination of
witnesses proper in a court of equity ; though the matter is capable
of being made immediately the subject of a suit at law ; seems
to be the same as that on which the practice of annexing an
affidavit of the loss or want of an instrument, to a bill seeking
to obtain in a court of equity the mere legal effect of an instru-
ment, is founded; namely, that the bill tends to alter the ordi-
nary course of the administration of justice, which ought not to
be permitted on the bare allegation of a plaintiff in his bill.
Taylor v. In order to obtain the leave of the court to bring a bill of re-

Sharp, 3 P. view, or a supplemental bill in the nature of a bill of review ujpon
x^]!^f'£^^^'l ^^^ discover!/ of new matter^ thfere must be an affidavit that such
78. 82. * °^^^ matter could not have been produced or used by the party

claiming at the time when the decree was made.]
Bunb. 303. In an interpleading bill, the party who prefers it must

jSee 3 Ves. & make affidavit that he does not collude with either of the other
^•'•>°ll parties.

[(a) He must He who moves for a ne exeat regno against another, must make
ly ^fthc"'^ affidavit of the loss he is like to sustain by the party's going out
clcfcndant is °^ ^^^ kingdom, and that thereby the debt may be lost, and that
indebted to the party is actually going out of the kingdom, (a)
him in a sum certain: where indeed a bill is for an account only, the plaintiff's swearing that
he beheves the balance in his favour will be so much, will be sufficient. 3 Atk. 501.] llSee
5 V». 96. 8 Ves. 52. 7 Ves. 417. 10 Ves. 164. ll Ves. 54. 16 Ves. 470. 18 Ves. 354.
19 Vet. 342. 6 Madd. 276.; and see tit. Prerogative, Vol. VI.||

St^*^ Tp f^ Quaker hath been permitted to put in an answer to a fri-

Wras! 78i! volous and vexatious bill without either oath or affirmation.
S P. Wms. Where a party excepts to a fact certified by a master's report,

.142. note. he must support his exception by an affidavit.

The

129

Jonee, 155.
Seld. 3 Vol.
p. 2. 1335.

The nobility of this kingdom, and lords of the upper house
of parliament, are of ancient right to answer in all courts, as
defendants upon protestation of honour only, and not upon
oath.]

A peeress by her answer owned that she had several deeds in p^^ q^
her power, but did not set them forth ; and on motion she was Duke HamiJ-
ordered to produce them on oath, but that order was changed, ton and Lady
and she to produce them on honour only, beinff in supplement Gerrard; but
to her answer, which was on honour. ^j^^j. ^^^ ^^.^^^

that a peer or peeress should produce writings on affidavit, or be examined on oath, as to any
thing in his answer, is not good. [Lord Harcourt held, that the privilege of a peer to depose
on his honour only, was confined solely to his answer in Chancery ; that in all other cases he
must be upon oath ; and therefore the Lord Stourton was put to answer upon his oath to
interrogatories. Sir Thomas Meers v. Lady Stourl^on, 1 P. Wms. 146.]

/V N affidavit must set forth the matter positively, and all ma-
terial circumstances attending it, that the court may judge
whether the deponent's conclusions be just or not.

And therefore, on motion to put off a trial for want of a ma-
terial witness, it must appear that sufficient endeavours were
made use of to have him at the time appointed, and that he can-
not possibly be present, though he may on further time given.

II In an affidavit in a cause the plaintiff need not state his resi-
dence. ||

Faresl.
Comb.

121.

422.

Crockets v.

Bishton,

2 Madd. 446.

2 Salk. 461.

Rex V.Wilson,
4TermR.487.

Upon a rule to shew cause, the plaintiff offered several new
affidavits, and this diversity was taken, viz. where they contain pi. i.
new matter, and where they tend only to confirm what was al-
leged and sworn when the rule was made ; in the latter case they
may be read, not in the former.

[When a defendant who has suffered judgment by default in a
criminal prosecution, is brought up for judgment, each party
should come prepared with affidavits disclosing his case (if he
mean to produce any) ; but if in the course of the enquiry the
court wish to have any point further explained, they will give the
defendant an opportunity of answering it on a future day.

When a defendant who has been convicted on an indictment Rex v. Sharp,
comes up for judgment, the prosecutor may read affidavits in »ess, i Term
aggravation, though made by witnesses who were examined at the ^* ^^®'
trial, which affidavits the defendant is at liberty to answer.]

If there be affidavit against affidavit, the proper method is to „ .
have it tried by an issue at law. ifseTBearnVs

Ord. 34.|| But this is matter discretionary in the court. See 3 Mod. 108. where an action
'on the case was brought for scandalous matter inserted in an affidavit ; that the party is to
put nothing in the a^f/ayjMnit what is material to the point, and therefore not to set forth
the merits of his cause on motion. Stile Prac. Reg. 79. where the affidavit of one who stood
in the pillory was read. 2 Salk. 461. But for this vide tit. Evidence. ||As to affidavits in
support of injunctions, see tit. Injunction.^

li An affidavit made in support of a state of facts may be re- In re Burton,
ferred for scandal, but not for impertinence, by a party who has ^ Russell, 580.
Vol. I. K filed,

I3i) AGREEMENTS.

See 7 Price, filed, in support of a counter state of facts, an affidavit which ap-
***• |)ears to be an answer to the former. II

AGREEMENTS.

(a) An agree- A N agreement [a) is the consent of two or more persons, the
mentis defined xX ^^^^ ^^ p^j.^^ with, and the other to receive, some property,

*^^t^ ■ • riffht, or benefit. The notion of contracting or entering into
wtennum tn re o ' „,. ^ '^ ,,°

atiqua facta vel agreements arose trom the mcrease or commerce, and the neces-
facicnda. sity men were under of bartering their superfluities for things of

Plowd. 17. a. j.gjj| ygg^ which lay out of the way of their acquiring. That men
uluiiumin should execute their agreements and perform their promises,
idem placitum though made without writing or consideration), is enjoined by the
consensus. law of nature ; but in civil societies, and in ours in particular,
P^' T"',' "ij circumstances are required which protect the weak, and those
Though aeon- ^ho are under the power of others ; and provision is made against
tract executed fraud and circumvention,
with all the

solemnity required by law, may properly be called an agreement, yet in the more common
acceptation of the word articles, viinutes, and escrow, &c. containing something preparatory
to a more solemn and formal execution, are called agreements.

Under this head we will consider,

(A) Who are capable of contracting and binding them-

selves or others by their Agreements.

(B) Of Agreements which are good in Law, and will

be decreed in Specie in Equity : and herein,

U Of unreasonable Agreements, and such as may he said to
be obtained by Fraud or Circumvention.

2. Of voluntary Agreements,

3. Of the Manner in which they are to be performed,

be within the Statute of Frauds and Perjuries :
and herein.

Hi. Of Agreements mentioned in the First, Second and Third
Sections of the Statute.

2. Of Agreements mentioned in the Fourth Section : and
herein,

1. Of

(A) Who are capable of making Agreements, 131

1. Of Promises by Executors, Administrators, &c.

2. Of Promises to answer for the Debt, Default, or

Miscarriage of another.

3. Of Agreements in consideration of Marriage.

4. Of Contracts for Sale of Lands, Tenements, and

Hereditaments.

5. Of Agreements not to be performed within One Year

from the making of them.

3. Of Agreements mentioned in the Seventeenth Section : and
herein,

1. What Agreements are within the Section.

2. Of Acceptance of Goodsj and part Payment within

the meaning of the Section.

3. Of the Memorandum in Writing, and the signing by

the Party to be charged, or by an Agent, jj

(D) Of Cases where Equity decrees specific Perform-
ance of Agreements on the Ground of their
being in part performed.

(A) Who are capable of contracting and binding them-
selves or others by their Agreements.

A PERSON non compos is not capable of entering into any But for this
agreement, for an agreement is an act of the understanding vide head of
which such persons are incapable of, and therefore are to be ^^^^^'^ ^^'^
under the care of their curators or guardians, by a commission
from the public.

An infant for the same reason is incapable of contracting. pj^^ ^^jg^ ^^^^

of Infancy and Age, ||and Void and Voidable.^ [If an infant. Bays Ld. Mansfield^ does a rifrht
act which he ought to do, or which he was compellable to do, it shall bind him. 3 Burr. 1801.
And if an infant enter into a contract with the advice and concurrence of his friends, and such
contract appear to be beneficial to the interests, of the infant, equity will support and give
it efifect. 1 Eq. Cas. Abr. 287.

A wife during the intermarriage is [a) incapable of entering Vide tit. Baron

into any agreement in pais, being under the power of her f"f^^'.^'.
It 1 ffl) But it IS

husband. iaid.thatif

a feme covert, by agreement made with her husband, is to surrender a copyhold or levy a fine,
though the husband die before it be done, equity will compel her to perform the agreement.
2 Vern. 61. pi. 52. Eq. Ca. Abr. 25. pi. 6. Upon looking into the Registrar's book, it ap-

E eared that the court made no decree in it, but it was by consent referred to Mr. Serjeant
lawlinson for his arbitration. Equ. Ca. Abr. 62. pi. 2, per curiam.

The ancestor seised in fee may by his agreement bind his heir; Baden v.
therefore if A. agrees to sell lands, and receives part of the pur- p°"u^^ °^
chase money, but dies before a conveyance is executed, and a bill 2 Vern. 215.
is brought against the heir, he will be decreed to convey (6), [(A) So in the
and the money shall go to the executor, especially if there are caseofacus-

K 2 more

ia« AGREEMENTS.

tomory heir, more debts due than the testator's personal estate is sufficient to

tV«.640.]

But if a man ' •'

for 100/, assumes to make a lease for twenty-one years, and dies, his heir is not compellable in
a court of equity to make the lease, for this is against tlie common law. Qiuere. Eq. Cas.
Abr. 265. pi. 4. iJRoll. Abr. 377. pi. 18.||

VuU in/n) of So if a father conveys to a younger son by a defective convey-
voluntary ^^^^^ ^^^^ jj^^^ ^1^^ |^gjj. ^j. ^^^ jj^ ^^^ ^^^^^ shall be compelled

(fl!T?9.*^uTOn 'o make it good. 1. Where there is a covenant {a) for further
a marriage assurance, binding the heir, because the heir is bound by the
treaty was to covenant. 2. Where there is a provision made by the father in

settle 500/. ;«rr j,jg iife_time for the heir, or he hath such provision by descent
annum asa^,^,,,. ' ' •'

jointure, in from the father. (6)

consideration of a marriage portion ; J. S. was intrusted with the drawing of the settlement,
which was never read by the wife; the jointure settled was but 400l. per annwrn, of which the
husband took notice, and talked of making it up so much, but dying before it was done, his
heir was decreed to make it up, although there was no covenant by which he bound his
heir to make it up so much. Vern. 16. [{b) See the case of Chetwynd v. Fleetwood, 4 Br.
P. C. 435. where a specific performance of an agreement made by the ancestor, only tenant for
life, was decreed against the heir, the agreement being clearly for his benefit.] jjSee Brummell
V. Clavering, 3 Swans*. 690.|| v

Hob. 203. I^ tt:.ant in tail agrees to convey, or bargains and sells the

Chan. Ca. 171. lauus for valuable consideration, without fine or recovery, and
10 Mod. 469. dies before the fine or recovery be levied or suffered, the issue
(d) So^th^o^u' h ^^ "°' (^^ bound either in law or equity, for equity cannot set
there be a de- aside the statute de doniSf which says, voluntas donatoris obser-
cree against vetur ; nor can the court set up a new manner of conveyancing,
the tenant in and supersede fines and recoveries ; for thereby the king would
filieand^ suffer ^^^^ ^^® perquisites by fines, on the writs of entry and fines for
a recovery, alienation.

and he dies in contempt and in prison for not executing it, yet the issue shall not be bound-
Vide Eq. Abr. 25. pi. 4. 265. pi. 2. 2 Vern. 506. [2 Ves. 634. But see Hill v. Cari;^ 1 Ch.
Ca. 294. The issue not bound by a covenant for further assurance. 1 Lev. 237. nor by
articles to convey for payment of debts. 2 Eq. Ca. Abr. 28. p. 34. By analogy to the cases
of tenants in tail who claim paramount to the contracting party, it hath been holden, that the
widow of a copyholder for life, who had agreed for the sale of his estate, but died before the
conveyance was executed, was not debarred by this agreement of her free bench; for that her
claim was not under the husband, but from the custom of the manor. Musgrave v. Dashwood,
2 Vern. 45, 63. But Ld. Hardwicke thought that the widow's estate was a branch of, and
arose from that of the husband, and that the custom merely directed its derivation ; and there-
aIL^a^^^ the agreement was for a valuable consideration, paid, as to the greatest part, he
. ^^^ c. -_r ... ... ... __ ,^^^ Arabl. 277.

same principle,

o , — without doing so,

eouity would not enforce the agreement against the survivor. But this, it seems, must be
taken with this limitation, where the articles are not such as amount to a severance of the

"•^l ^' I • ^^ ^^ ^'^» ^^^^^y '''^^ ^^"^^ against the survivor. Per Ld. Hardwicke, 2 Ves.
634. Co. Lltt. 59, b.]

Sir*a^d' ^^^' , ^* *^i^®^ °^ ^^"^* ^" ^^^' agrees with B. that he and his heirs
fUm, (d)So if snail enjoy the entailed lands, if A. and his heirs may enjoy his
the issue in fee-simple lands ; this agreement is executed accordingly, and B.
tail had rcco. had a decree against A. to levy a fine and settle it, pursuant to
the pufcha^. ^^"^ agreement; but A, died without doing it: though it was de-
money in his creed that A. himself was bound by this agreement to convey, yet
father's life- since he died before he executed the fine, his issue was not bound
time, or after by the agreement : but if the issue in tail liad approved of his

ancestor's

(A) Who are capable (^making Agreements, 133

ancestor's agreement, as he did in this case, by entering on the his deatli.or if
land of B. then it becomes his own agreement, and consequently ^^ had joined
in equity he shall be obliged to perform it. {d) with tie father,

or covenanted for further assurance, &c. Chan. Ca. 171. Lev. 238. [Any agreement with an
equivalent will bind the issue, as a partition, though but by parol, or an excharge of lands.
2 Vern. 202. Co. Litt. 174. a. 384. a.]

If there be tenant in tail in equity as of a trust, or under an chan. Ca. 234.
equitable agreement, and he for valuable consideration bargain 2 Chan. Ca. 64.
and sell the land without fine or recovery, this shall bind his 2 Vent. sso.
issue, because the statute de donis doth not extend to it, being Jvern %?^*
an entail in equity and a creature of the court, {a) 583_ 702.

[(a) It seems that upon the same principle the heir in tail of a copyhold, whose ancestor had
entered into an agreement to sell, but had died before surrender, would be decreed to convey
to the purchaser ; for the entail of a copyhold is not within the statute de donis. Powell
on Contr, 126.]

As tenant in tail is restrained from alienating the estate with- Bro. Contract.

out fine or recovery, so he is from charging it, or disposing of the p^* } ^ r?' ^°"

lasting improvements after his death ; therefore if tenant in tail (Jj^Qh. Whe-

sells the trees growing on the inheritance, the vendee must sever ther he may

them during the life of the tenant in tail, for if he dies before "ot have relief

they are cut down, his issue shall have them as part of the inherit- J."jher"^^ "t*^

ance, and the vendee, though {b) obliged to pay the whole sum ^^ action for

contracted for, yet shall not be allowed to cut down one tree after money had

the death of tenant in tail ; for as the tenant in tail has power over and received

the inheritance but during his own life, so he cannot delegate would not lie
. I . ^ 11^1 . 1 ° 1 against the re-

tnat power to another but tor the same time ; and consequently, presentative ?

whatever remains part of the inheritance at the death of tenant in [If tenant in

tail, at which time his power over it ceases, must necessarily go tail covenant

to the heir, to whom the inheritance belongs. f° make a

D lease, which he

has power to make, and die before execution, equity, it seems, will carry it into execution

against his heir. 10 Mod. 469. If tenant for life, with power to make leases for twenty-one

years, grant one for twenty-six years, such lease shall bind the remainder-man for .twenty-one

years, for under the power of leasing there is a referable privity given. Campbell v. Leach,

Anibl. 740.] \\Vide Shannon v. Bradstreet, 1 Scho. & Lef. 52. Ellard v. Lora LlandafF, 1 Ball.

& B. 241., and 1 Chan. Ca. 25. 3 Chan. R. 1 l.jl

CA mother, acting as administratrix, may bind her children. Highter v.

Sturman, 1 Vern. 210.

Churchwardens are in that character competent to enter into Dr. Martin v.
any agreement which may be beneficial to the parish, and thereby w^^^^^ofi^s^'
to bind the parishioners and their successors, as also succeeding nggg jjj.^

churchwardens. Church-

wardens.^

If a party undertaking for and on the behalf of another have Johnson v.
no authority from his principal, there it is a fraud, and the un- Ogilby, 3 P.
dertaker ought himself to be liable. But where a due authority Wms. 279.

Martini" xr

is given to treat, there the performance of the contract shall be ^^^jg g Vem
enforced against the principal. 127. Duchess '

of Marlborough v. Strong, 5 Yin. Abr. 533. p. 38. 2 Bro. P. C. 500. S. C. If an attorney
should bid more for an estate sold under a decree of the Court of Chancery, than he waa
empowered to bid, and declare his principal, Sir Thomas Sewell, Master of the Rolls, thought
that the attorney himself would be liable, but doubted whether the principal would. Ambl.
498. But where many are concerned in interest, and the credit is evidently given to the
person, and not to any fund, the immediate contractors are liable. Thus where a man con-

K 3 tractei

134 AGREEMENTS.

tracted to pore the streets of a town by a written instrunaent executed between hira and two
of the parishioners, the Court of Excheauer decreed him relief against the undertakers, and
left them to their remedy over afjainst the rest of the parish ; more especially as the written
contract, which was the plaintiff"'s evitience, was in the hands of one of the defendants. Me-
rick V. Wymondfold, Hardr. 205. So it was holden, that a bill might be supported against the
committee of a club for an agreement entered into by them on account of the club, without
making the rest of the subscribers parties. Cullen v. Duke of Queensberry, 1 Bro. Ch. R. 101.
affirmed in Dom. Proc. March 27. 1787. So, where the commissioners of a navigation act
entered into an agreement with an engineer, they were holden to he personally liable. Horsley
T. Bell, Ambl. 770. S. C. in 1 Bro. Chan. R. 101. in note. I|Eaton v. Bell, 5 Barn. & Aid. 34.
In these cases the contracting parties, though agents, are held liable on the ground of the
absence of any re»ponsiblc principal ; but there is an exception to this rule in the case of
government agents and public officers : e.g. the governor of a settlement, a commissary
general, the commander of a ship of war, who, in general, are not personally responsible on
the contracts made in their public capacity, although there be no principal against whom a
remedy can be had. Macbcath v. Haldimand, ||l Term R. 172. ; and see Myrtle v. Beaver

1 East, 135. Bowen r. Morris, 2 Taunt. 374. If, indeed, the agent bind himself by a formal
engagement, as if a factor enter into a charter party in his own name, or if an agent purchasing
bills for his principal indorse them himself, or if an agent covenant for himself and his heirs for
the act of his principal, then, whether a public officer or not, he is personally liable. 1 Term
R. 181. 2 Moll. 331. 2Atk. 623. 2 Vern. 280. Goupy T. Harden, 7 Taunt. 1 59. Appleton
T. Binks, 5 East, 148. Burrell v. Jones, 5 Barn. & A. 47. Paley on Princ and Agent, ch. 6.
(2d edit.jil /

Daniel v. Where an agent employed by husband and wife to sell the

Adams, Ambl. wife's estate by public auction sold it by private contract, at a
*•*• higher price than they had required, the court refused to compel

them to execute the contract, the agent not having acted pur-
suant to the authority given him.
Ambl. 498. But if a factor sell goods at less price than he is commissioned,

otherwbe' i'n '^^ ^^^^ ^^^^ ^^"^ '^^ principal for the convenience of trade,
case of a broker, i Esp. Ca. lil.H

Cox V Peele ^^^ agreements of the solicitors in a cause, relative to orders

2 Bro. Ch. R*. of court, are binding on their clients.]
334. ||A» to admissions by attorneys of facts, vide tit. Evidence.^

(B) Of Agreements which are good in Law, and will
be decreed in Specie in Equity : and herein,

1. Of unreasonable Agreements^ and stick as may be said to be
obtained by Fraud or Circumvention.

(a) Vide t\t. JN many cases the party injured by breach of an agreement
#am^/, and , ™^^ ^^^^ * remedy either by action at common law (a), ojr
Covenant. ^V recourse to a court of equity ; but here a general rule must

Vide Abr. Eq. be observed, that wherever the matter of the bill is merely in
the rallof" *^^"^«ges, there the remedy is at law, because the damages can-
courts o( 1?°^ ^^ ascertained by the conscience of the chancellor, and there-
equity not to 'ore must be settled by a jury, (b)

entertdn the suit unless the plaintiff" wants the thing in specie, and cannot have it any other
way. fcmngton v. Aynesley, 2 Bro. Ch. R. 343. Therefore, in general, they will not allow a
S i K » '^uf" performance of contracts of stock, corn, hops, or other articles of merchan-
due, but w^l leave the plamtifi^to his remedy at law. l P. Wms. 570. 5 Vin. Abr. 538. S. C.
XS^n o'o Tf' K • r' u °°"'°" ^- Westbrook, 2 Eq. Ca. Abr. 161. p. 8. 5 Vin. Abr.
««,;h'^;, rk '^''^^^^ /f the common covenant to repair demised premises, is considered as
•«rin J in rh M^ L°h ?"'* P^PI'T-**"'^ *° b^ redressed by action at law. Whistler v. Main-
E^^ I ^» ov ^' ^' u '±" ' Wooddes. 464. n. 2.] HMosely v. Virgin, 3 Ves. 1 85.
R*ynar V. Stone ,3Lden. 128.|| [But on a covenant to rebuild, as it was holden by Lord

Hardunckc,

(B) TFhaf good in Law, and speci/icall^ enfoj^ced in Equitif. 135

Hardwicke, the landlord or lessor may come into Chancery for a specific performance, if he is
in due time, and no constructive acquiescence can be imputed to him. City of London v.
Nash, i Ves. 12. and 5 Atk. 512. S. C. This doctrine, however, has been lately controverted,
and perhaps entirely over-ruled. Lucas v. Comerford, 3 Bro. Ch. R. 166.] [jSee Mosely v.
Virgin, 3 Ves. 185. Flint v. Brandon, 8 Ves. 164. Hill v. Barclay, 16 Ves. 402.1| [In the cases
of Gardener v. Pullen, 2 Vern. 594. Thomson v. Harcourt, 2 Bro. P. C. 41 5. a performance of
an agreement for stock was decreed. But it should be observed, that in those cases the party
who had undertaken to transfer the stock was j)laintifF, seeking relief against a penalty, in
which he had bound himself for performance of the contract, and that the performance of it
was the only ground on which equity could relieve him. Fonbl. Notes on Eq. Tr. p. 120.
But on a bill filed against the party who had undertaken to transfer the stock, Lord King did
not think the rule so invariably settled, as to allow a demurrer to the bill for want of equity.
Colt V. Nettervill, 2 P. Wms. 304.] ||See Mason v. Armitage, 15 Ves. 37. Nutbrown v.
Thornton, 10 Ves. 161. And a bill will lie for performance of an agreement to purchase stock
where it prays a delivery of certificates which give a legal title to stock. Doloret v. Rothschild,
1 Sim. & Stu. 590.|| [And contracts respecting mere personal chattels will be enforced in
equity where the damages recoverable at law would not be an adequate compensation for the
non-performance. Buxton v. Lister, 3 Atk. 383., and Taylor v. Neville, and Duke of Buck-
ingham V. Ward, there cited; and Lord Ranelaugh v. Hays, irifra.} |lAs in the case of the
stock on a farm seized by the landlord during the tenancy. Nutbrown v. Thornton, 10 Ves.
159.; family pictures and furniture. Lady Arundell v. Phipps, Ibid. 139.; and see Withy v.
Cottle, 1 Sim. & Stu. 174. 1 Turner & R. 78. The court will enforce a specific performance
of a contract to purchase a debt. Wright v. Bell, 5 Price R. 325. Dan. 95. ; and see Withy
V.Cottle, suprh. Adderley v. Dixon, 1 Sim. &Stu.607.1|

But if there be matter of fraud mixed with the damages, as if Chan. R. 158.
A, sues B. on a covenant at law for damages, and B. files a bill ^^''•Eq. 17.
for an injunction upon this equitable suggestion, that the cove-
nant was obtained by fraud, if y^. files his cross-bill for relief upon
that covenant, the court will retain it, because the validity of
the covenant is disputed in that court, and on a head properly
cognizable there ; and therefore, if the validity of the deed be
established, the court will direct an issue for the quantum of the
damages.

So where the agreement is to do something in specie, as to See Chan. Cd.
convey lands, execute a deed, 8fc. there it will be proper to apply 42. where an
to a court of equity for a specific execution, to which the party agreement m
is entitled, if the agreement be good and sufficiently proved, ^^ger was
when otlierwise he could only recover damages at law. decreed in

specie.

Ij A specific performance will not be decreed of an agreement street v.
to submit to arbitration. Rigby, cVes.

818. Agar V. Macklew,2 Sim. & Stu. 418. Gourlay v. Somerset, 19 Ves. 431.

Nor of an agreement to purchase an attorney's business, since Bozon v.
supposing such agreement not illegal, the court has no means of Farlow,
carrying it into execution. * Meriv. 459.

Nor of an agreement for partnership, as it may be dissolved „
immediately afterwards. 1| Birch 9 Ves,

357. ; ted vide 3 Atk. 385. Madd. Treatise on Chan. 411. note (x).

The plaintiff assigned some shares of the excise to the defend- Vern. i89.
ant, who thereupon covenanted to save him harmless, and to R'- ^^^' ^"'"'^
stand in his place touching all payments to the king ; the plain- j|' ^ 2 Chan',
tiff being sued by the king, brought his bill to have the agree- Ca. 146. S. Cr
ment performed in specie; and although it was insisted that the
plaintiff might recover damages at law, and that this was not a
covenant for any thing certain ; and by this means a Master in

K 4 Chancery

136 AGREEMENTS.

C'hancery was to tax damages instead of a jury; yet it was de-
creed, that the defendant should perform his covenants ; and it
was directed to a Master, that, as often as any breach should
happen, he should report it specially ; that the court, if occasion
should be, might direct a trial in a quantum damnijkat.
Abr. Eq. 18. So if a jointress brings her bill to have an account of the real

^7. [(a) In j^„j personal estate of her late husband, and to have satisfaction
Stcwart,*4th thereout for a defect of value of her jointure lands, which he had
/m/j 1786. covenanted to be and to continue of such value ; and the defend-
er L.Kcnyon ant insists, that this is a covenant which founds only in damages,
Master of the ^^^ properly determinable at law; though it be admitted that a
Rolls, directed f r -. .. i i i ► • *u-

the Master to court of equity cannot regularly assess damages ; yet in this case,

enquire what a Master in Chancery (a) may properly enquire into the value and
damage the defect of the lands, and report it to the court, who may decree
plaintiff had g^^jj defect to be made good, or send it to be tried at law, upon
sustained by . i -^ . ° » r

the defendant's « quantum dammficat.

not having performed his agreement, of which a specific performance was prayed by the bill,
but which could not be decreed, the defendant having, by sale of the estate, put it out of his
power to perform his agreement with the plaintiff. Fonbl. Notes on Eq. Tr.389.] jjThis
decision was followed by the Master of the Rolls in Greenaway v. Adams, 12 Ves. 595. ; but
the nrinciple was doubted in that case, and also in Gwillim v. Stone, 14 Ves. 128., and
Todd v. Gee, 17 Ves. 273.; and see a foil note of Denton v. Stewart, 17 Ves. 276., and 1 Cox
R. 258.0

Abr. Eq. 18. The condition of a bond was to settle certain lands in such a

P'-^' K*)^* manor, by such a day; and the obligor died before the day, so
holden that to ^^' ^^ bond was saved at law ; yet the court decreed a specific
found a de- execution, {h)

cree for a specific performance, the contract must be good at law ; and therefore it is stated
by Sir Thomas Clarke^ Master of the Rolls, in Ambl. 406. that it was the practice before Lord
Somers* time with respect to agreements, to send the party to law ; and if he recovered any
thing hy way of damages then to entertain the suit. But equity will often enforce a perform-
ance of agreements, though no action will lie at law upon them, as in the case in the text, and
in Cannel v. Buckle, 2 P. Wms.243. Acton v. Pierce, 2 Vern. 480. Scott v. Wray, 1 Chan.
R. 45. Edwin v. East India Company, 2 Vern. 210.] ||Chandos v. Brownlow, 2 Ridg. P. Ca.
416.; but see 2 Freeni. 216., and see 1 Anst. 45. 3 Swanst. 41 7.1|

Abr. Eq. 17. ^"' .^^^^ it must be observed, that agreements, out of which

3Atk.386. an equity can be raised for a decree in specie, ought to be ob-
TS)*234'Pr ^'"*:^ ^^^^ ^^^ imaginable fairness, and without any mixture
Ch.538. iBro. ^^"^'"g to surprise or circumvention; and that they be not un-
Ch. R. 440. reasonable in themselves, (c)

((e) Vaughan v. Thomas, l Bro. Ch. R. SSG, ace. Stanhope v. Toppe, 2 Bro. P. C. 1 83. 2 Ed.
Ca.Abr.55. note to Ca.1.1 iJCostigan v. Hastier, 2 Scho. & Lef. 166. Howel v. George,
1 Madd. K. 1 1. note. Revell v. Hussey, 2 Ball & B. 287.|| [But inadequacy of price, simply
and of Itself, independently on any other circumstances, is not a ground with the court to
annul an agreement, though executory. Keen v. Stukeley, Gilb. R. 155., and 2 Bro. P. C, 396.

-n"*"!?^'!; ''P^'"L.-.S''°-^^-'^'^^^- ^^""y^^ v- Sherrard, Ambl. 18. Jackson v. Lever,
5 wro. I h. K. 605. ^^tIll less is it a ground to rescind one already executed. Nicols v. Gould,
S \ C8. 422. Henley v. Acton, 2 Bro. Ch. R. 1 7. Spratley v. Griffith, 2 Bro. Ch. R. 1 79. Willis
V. Temegan, 2 Atk. 25 1. ; but see Heme v. Meeres, l Vern. 465. In the case of Heathcote v.
Mugnon, 2 liro. Ch. K. 167. Lord Thurlow admitted, that mere inadequacy of price was
•cwcely sufficient; but said, that « there was a difference between that and evidence arising
frominatlequacy.Ifthere IS such inadequacy as to shew that the person did not undert
stand the bargain he made, or was so oppressed that he was glad to make it, knowing its

Vnlln!'^"n W k « VT"^«"^ ""l^' '"•" ^hich may amount to fraud." And see ace.
Young V. Clerk, Pr. Ch 538.] HLovc v Borchard, 8 Ves. 1 33. Westburn v. Russell, 3 Ves. &
B.187. Matthew, v. Peern, 1 Cox's R 278. Copi, v. Middleton, 2 Madd. 430. Coles v.

Trecothick,

(B) What good in Law, and specifically enforced in Equity, 137

Trecothick, 9 Ves. 246. Underbill v. Harwood, loVes. 219. Burrows v. Lock, loVes.474.
Murray V. Palmer, 2 Scho. & Lef. 488. Peacock v. Evans, 16 Ves. 517. Lukey v. O'Donnel,

2 Scho. & Lef. 471. Pickett V. Logan, 14 Ves. 240. Inadequacy of price coupled with dis-
tress of the vendors, and want of advice, is a ground for invalidating a sale. Wood v. Abrey,

3 Madd. 417. ; and see Kemyes v. Hansard, Coop. C. 125. Martin v. Mitchell, 2 Jac. & W. 13.|1
[And where agreements are endeavoured to be set aside, for supposed weakness of understand-
ing in one of the contracting parties, for breach of confidence, or other substantive reason, the
inequality of the terms may be a material ingredient in the case, as evidence of imposition.

5 VVooddes. 455., and Griffin v. De Veulle, and others, reported in the Appendix. It is to be
further observed, that where an agreement appears very unequal, the courts will lay hold of
very slight circumstances to avoid enforcing the execution of it ; as where the plaintiff had
not made out his title by the time stipulated. Kenn v. Stukely, 2 Bro. P. C. 396, ; a circum-
stance which, in general, has not any weight with them. Gibson v. Patterson, 1 Atk. 12. If
the contract be fair in its creation, it shall not be aifected by a subsequent event, which has
thrown the advantage greatly, or wholly on one side. See the case of Cass v. Rudele, 2 Vern.
280. more correctly stated in 1 Bro. Ch. R. 157. City of London v. Richmond, 2 Vern. 423.
Carter v. Carter, Ca. temp. Talb. 271. Mortimer v. Capper, 1 Bro. Ch. R. 156. and the case
there referred to by Lord 77/Mr/ot/;. Adams v. Weare, 1 Bro. Ch. R.567. Jackson v. Lever,
3 Bro. Ch. R. 605. where contracts, under such circumstances, have been specifically decreed.
And see the case of Nicols v. Gould, 2 Ves. 422. Henley v. Acton, 2 Bro. Ch.R. 17. Baldwin
V. Boulter, cited in 1 Bro. Ch. 11.156. where the courts have refused to set them aside.]
iJRamsbottom v. Parker, 6 Madd. 5.1J [To this current of authorities must be opposed the
dictum of the Master of the Rolls, in Stent v. Bailis, 2P. V/ms. 220. and the case of Pope v.
Roots, 7 Bro. P. C. 184., in which case an estate was sold for an annuity, but the vendor dying
before any payment was made ; and after the day on which the first payment was to have
been made, the contract was rescinded, though not impeached in any other respect. James v.
Owen, E. T. 1733, cited in Fonbl. Notes on Tr. Eq. c. 2, § 11., appears to have proceeded on
a different ground : the plaintiff had agreed to present the defendant to the Court of Alder-
men, and to resign the place of printer to the city of London in his favour, to which place
certain fees and profits were then annexed, but which the Court of Aldermen intimated their
intention to reduce ; and for that reason the defendant refused to perform his agreement. The
court thought, that the object of the agreement being the then profits, which were not purely
contingent, and the plaintiff not having actually surrendered, the performance of the agree-
ment ought not to be decreed.] jjSee Paine v. Mellor, 6 Ves. 349. Revell v. Hussey, 2 Ball

6 B. 287.|| [A party who demands a specific execution of an agreement, must shew that he
has performed all that was to be done on his part, or that he is ready to do so ; " for if he
" either will not, or through his own negligence cannot perform the whole on his side, he has
" no title in equity to the performance of the other party, since such performance could not
" be mutual." Tr. of Eq. c. 6. ^ 2. But it must be observed, that though a plaintiff has not
performed what was required on his part within the time stipulated, he is yet in general entitled
to a specific execution, especially if the non-performance has not arisen by his default. Penn
V. Lord Baltimore, 1 Ves. 450. If in the sale of an estate, it be stipulated that the price shall
be paid, or the title be completed by a certain day, which elapses without either being done,
still the contract shall be enforced ; for the general rule is, not to consider the time as of the
essence of agreements. Gibson v. Paterson, 1 Atk, 12.] |lBut this doctrine is much questioned,
and see on the subject Pincke v, Curtis, 4 Bro. Ch. R. 329. Lloyd v. CoUett, 4 Bro. Ch. R.
469. Ormerod v. Hardman, 5 Ves. 736. Seton v. Slade, 7 Ves. 265. Hall v. Smith, 14 Ves.
426. Wynn v. Morgan, 7 Ves. 202. Alley v. Deschamps, 13 Ves. 228. Radcliffe v. Warring-
ton, 12 Ves. 326. 1 Ball & B. 68. Morgan v. Shaw, 2 Meriv. 140. Levy v. Lindo, 3 Meriv.
84.; and what is said in Hudson v. Bertram, 3 Madd. R. 447. Boehm v. Wood, 1 Jac. & W.
419. Morse V. Merest, 6 Madd. 26. Doloret v. Rothschild, 1 Sim. & Stu. 590. Coslake v. Till,
1 Russell, 376. Newman v. Rogers, 4 Bro. Ch. R. 391. Lewis v. Lechmere, 10 Mod. 503. ||[In
the case of non-completion of the title by the day appointed, if the vendee, immediately upon
the vendor's failure in that respect, demand a return of the deposit, and distinctly refuse to go
on with the purchase, the court will not compel him ; but if he acquiesce in the delay, know-
ing the state of it, or do not sufficiently declare his determination not to proceed in the pur-
chase, he will not be allowed to resist the performance afterwards upon that ground. Pincke,
V. Curtels, 4 Bro. Ch. R. 329., and the case of Ambrose v. Hodgson therein cited. Vernon v.
Stephens, 2 P. Wms. 66. However, in either case, if any injury would accrue to the other
party from the failure, or if the circumstances which occasioned it ate likely to create any
embarrassment, or to protract the final completion of the agreement for any unreasonable
time, the court will set it entirely aside. In the case of Mackreth v. Marlar, at the Rolls,
Juli/ 10. 1786, Sir L. Kent/on decreed a contract for the purchase of an estate to be delivered

up.

138 AGREEMENTS.

up, the purchaser having died shortly after the contract, and a suit having been instituted for
ail account of assets, which was then dependinff. The purchaser had agreed to complete his
purcha-sc on or before the 50th of November ; he died on the 12th of January following, and
the vendor filed this bill in the beginning of the year 1785. This decree was, that the de-
fendants, the executors of tlie purchaser, should deliver up the contract to the plaintiff the
vendor, and that the plaintiff should retain his costs out of the deposit. 2 P. Wnis. 67. note 1.
Eijuity, too, distin;,'uiihes between those cases, where the one party having performed part of
the a"reenient, is rendered unable to perform the whole by some subsequent accident ; and yet,
notwithstanding the part performance, is in statu quo, and those where after such part per-
formance he is not in statu quo, and in the latter holds him entitled to a performance from the
other party, though it refuses it in the former. To this distinction must be referred the dif-
ference of decision in the cases of Earl of Feversham v. Watson, Rep. temp. Finch. 445.
a Frecm. 35. S. C. Meredith v. Wynn, Pr. Ch. 312. Gilb. Ch. 242. S. C. 1 Eq. Ca. Abr. 70.
1. J 5. S. C. Gilb. Eq. II. 170. S. C. If the plaintiff has taken all necessary steps to perform
lis part of the agreement, but has been prevented by the defendant, his endeavours will be
considered as equivalent to perfomiance Blackwell v. Nash, 1 Stra. 535. Hotham v. East
India Company, 1 Term R. 658. Though it be generally said that contracts are entire, and
shall be perfonned in toto, or not at all, yet there are cases in which the courts will decree a
performance, notwithstanding a partial failure, as in the case of marriage agreements, in favour
of a wife or children, where there has been a failure by the father's or mother's relations in
the part they had engaged to perform. Earl of Feversham v. Watson, suprk. Perkins v.
Lady Thornton, cited in Pyke v. Pyke, 1 Ves. 376.; or of part becoming illegal by a subse-
quent statute. Dr. Bettcsworth v. Dean and Chapter of St. Paul's, Sel. Ca. Ch. G6. ; or of
E art exceeding the power of the contracting party. Pawsey v. Bowen, 1 Ch. Ca. 2J. Carap-
ell V. Leach, Ambl. 740. So in the case of a sale of an estate by lots, though the vendor can-
not make a good title to all the lots, yet the court will oblige the purchaser to take those to
which a good title can be made, if they can be separated from the others without being
lessened in value. Poole v. Shergold, 2 Bro. Ch. R. 118.]

2 Ch. Ca. 17. As where by a marriage agreement the son's intended wife was

to have more than would have been left for the father (though

indebted), his wife and two daughters unpreferred, the Court

would not decree it ; principally, by reason of the extremity of

it, but left the party to his remedy at law.

Vera. 227. So where A. articled for the purchase of B.^s estate, pretending

V ^'^b^k''" ^^ bought it for one whom B. was willing to oblige, and thereby

of Bucks" ^ S^^ ^' somewhat cheaper, when in truth he bought it for an-

[(a) In the Other (a), equity would not decree an execution of this agreement.

«T °K^T'' Irnham v. Child, 1 Bro. Ch. R. 95., Lord Thurlow is reported to have said, that

^ he should be very sorry to lay it down, that a man treating with a third person in trust for

^ a second, whom he had refused to deal with, could therefore set the contract aside ; that

no case had gone so far; that Phillips v. Duke of Bucks was upon a difference of price."

But in the case of Eyre v. Popham, M. 14G.3., Lord Bathurst held, that an acreement

entered mto under the circumstances stated by Lord Thurlow, was not that fair acreement

which ought to be decreed in specie by a court of equity.] iJSee Davis v. Symonds,^ 1 Cox's

Fellowes v. ||But \i A. in contracting with B. falsely represent himself as

1 Sim 63 '*^'^' *^^ '^^^"^ °^ P' ^"^ thereby obtains better terms, the court will

notwithstanding enforce the contract, unless A. knew that such

would be the effect of the misrepresentation.
Scott V. Han- Where a piece of land imperfectly watered was described in
tee Wetu™v"' ^^^ Particular as uncommonly rich water meadow, it was held
Stubbs,' ' ^* ^^^^ ^^'^ ^'^^ "°t such a misrepresentation as would avoid the
iMsdd.so. sale.
Cadman v. Homer, is Ves. lo.

L^t'cr"'^' . ^^^^^ on the face of an agreement a specific sura was to

3Att,*385. , ^'^'^" ^°^ timber; but it was shown by parol testimony that

the dcfeudants were iiiducetl to give that sum by a representation

that

(B) What good in Law, and specifically enforced in Equity, 1S9

that it had been valued by two timber merchants, the agreement
was not enforced.

So, where an agi'eement was to pay so much rent, but it ap- Woollam r
peared in evidence that the defendant agreed to the rent on the Hearne,
plaintiff's false representation that it was the rent he paid, a spe-
cific performance was refused.

So, where the defendant had executed the agreement on the Clark v.
faith of a parol agreement by the plaintiff which was unper- Grrant, i4Ves.
p J • i^ n n 1 *iy. J and see

lormed, a speciiic pertormance was retused. Beaumont v.

Dukes, 1 Jac. 422,

And a party obtaining an agreement by a partial misrepresent- S^^'^J'^""^ ^*
ation is not entitled to a specific performance on waving the part j j^^ "&^w
affected by the misrepresentation. 112.

Where the particulars of sale state it to be without reserve. Meadows v.
and puffers are employed by the vendor, a specific performance ^"J"^*^' „
will not be decreed. 1| ^ "^ •

So, where A. on the marriage of his daughter to B. covenanted Bromley and
that B. should have his lands at his death cheaper than any Jefferies,
other person, and he lived twenty years after, and devised to B. n^^^ Emerv t
1000/. and to his daughter, ^.'s wife, 500/. and he devised the Wase, sVes. '
lands to his grandson ; the court refused to decree an execution 846. Brodie v.
of the agreement, because of the uncertainty of it, and it not ^tv^'"^?^'^
being mutual ; B. not being bound to take it at any price. ^^^ Lyndsay v.

Lynch, 2 Scho. & Lef. 7.|i

An agreement for a purchase being obtained by an attorney 2 Vern. 652.
from an old woman of ninety, and several suspicious circum- ^^^ j ^^^
stances appearing, the court would neither decree it to be car- temp. Talb.
ried into execution against the heir at law, nor to be delivered 2.56. Savage v.
upon a cross bill exhibited for that purpose ; but left the parties Taylor, S. P.
to their remedies at law.

But as these cases, and all others on this head, depend so much [The Court
upon circumstances, and are to stand or fall according to the de- will not com-
grees of fraud or circumvention attending them, and proved in Pf ^ P"*"" ,
the cause, or by what appears unreasonable on the face of them ; ^ title which
I shall only observe, that a court of equity will much more easily is at all doubt-
be prevailed on to dismiss a bill which prays a specific execution ful ; Shapiand
of an unreasonable agreement (a), than set aside an agreement, nu r^^c'
though not strictly fair (b), on a bill for that purpose ; for this Cooper v.
deprives the party of what he had a right to by law ; and Denne, 4 Br.
that where such agreements are set aside, it must be on refund- Ch. R. so. nor
ing what was bona fide paid, making allowances for improve- posg^vv^here a^'
ments, Src. (c) party has for-

borne to insist upon an agreement for several years; Scolefield t. Whitehead, 2 Vern. 127.
Wingfield v. Wheley, 5 Vin. Abr. 534. pi. 58. Powell v. Hankey, 2 P. Wms. Orby v. Trigg,
9 Mod. 2. IJMoore v. Blake, 1 Ball. & B. 62.|| unless the delay can be accounted for by special
circumstances; Eq. Tr. c.4. § 27. nor in case of a written agreement, afterwards discharged
by parol ; Goman v. Salisbury, 1 Vern. 240. Ld. Milton v. Edgeworth, 6 Br. P. C. 580.
Legal V. Miller, 2 Ves. 299. nor in the case of a sale by auction, where an accident has hap-
pened to cast a damp upon the sale, though without blame imputable to any one ; as where
the vendor's agent, known to be such to the company pi-escnt, bid for the purchaser ; Twining
V. Morrice, 2 Br. Ch. R. 326. IJSmith v. Clarke, 12 Ves. 483. Sed vide Meadows v. Tanner,
5 Madd. 34. II nor if the agreement be to do a thuig which would tend to extortion, or pro-
mote

140 AGREEMENTS.

mote inebriery ; Mythwold v. VValbank, 2 Ves. 238. ||See Stone v. Liddcsdale, 2 Anstr. 533.\\
nor if damages be stipulated ; Woodward v. Gyles, S Vern. 119. But a penalty in general will
not Ite allowc<l to release parties from their agreements ; it being usually designed merely as a
medium for securing the performance of the contract. Parks v. Wilson, 10 Mod. 517. Chil-
liner v. Chilliner, 2 Ves. 528. Sloman v. Walter, 1 Bro. Ch. R. 418. Howard v. Hopkyiis,
8 Atk. 371. nor will they interpose, if the agreement be founded on an illegal consideration,
a< that of stifling a prosecution for felony, or for fraud, 3 P. Wms. 279. Keen v. Stukely,
Ciib. Eq. R. 153. Hanger v. Eyles, 2 fiq. Ca. Abr. 20. p. 16. Hickes v. Phillips, Pr. Ch.
575. (a) See ace. Savage v. Taylor, Ca. temp. Talb. 236. Young v. Clark, Pr. Ch. 538.
Vaughaa v. Thoinas, 1 Bro. Ch. R. 556. Davis v. Symonds, Scac. 1787. (6) Solemn con-
Tcyaiices, releases, and agreements by parties, are not slightly to be blown off and set aside,
per Ld. MaccUxJUU, Cann v. Cann, 1 P. Wms. 227. ||See Stockley v. Stockley, 1 Ves. & B.
31. II Equity therefore will not avoid a reatonable andjfair agreement^ though founded on mis-
take, i-rank v. Frank, 1 Ch. Ca. 84. Stapleton v. Stapleton, 1 Atk. 10. or though the party
were intoxicated, jjsce Cragg v. Holm, 18, Ves. 14.|| or in prison, at the time he entered into
it, or some paternal authority were exerted, and some benefit accrue to the father under it.
Cory V. Cory, 1 Ves. 19. Hinton t. Hinton, 1 Ves. 632. Kincliant v. Kinchant, 1 Bro. Ch.
R. SCO. ||See Poth. torn. 1.17. Brown v Carter, 5 Ves. 576. Hawes v. Wyatt, 2 Cox, 263-
3 Bro. C. C. 156. Wycherley v. Wycherley, 2 Eden, 180.|| It will not decree a forfeiture
after an agreement, in which, if there were a mistake, it was the mistake of all the parties to
iu PuUen v. Ready, 2 Atk. 592, Maiden v. Merril, 2 Atk. 8. (c) Savage v. Taylor, Ca.
temp. Talb. 236. For cases of Fraud, vide infra, tit. Fraud (B).] JlAnd see Bowes v. Heaps,
3 Ves. & B. 117. Dalbiac v. Dalbiac, 16 Ves. U6.|j

2. Of voluntary Agreements.

3 Co. 81. b. As men have a right to their acquisitions, so may they dispose

*.- i^^ ,,"2' of them at their pleasure, and without valuable consideration:

443. Uy. 33b. , .„ * ' , , . 1.1

b. 2 Bulstr. but 11 a man promises to convey lands, or to give goods, without
225. valuable consideration, or without delivering possession of them,

t(a) Though this alters no property, nor has the party any remedy in law or
^wedThis ^' ^^"^ty> ^^ being nudum pactum unde non oritur actio, (a)
maxim from the civil law, yet we do not agree with the civilians in their definition of what
constitutes a nudum pactum, the want of consideration not being regarded by them. In their
law, " Nuda convenlio est, qucB in nudis placiti et conventionis finibus stat, nee certuvi novien
" habetu, nee uUam obligaTuJi causam prceter eonventionevu" D. 1. 7. § 1. 2. and 4. de Pact. 1. 27.
Vinnius, in his Commentary on the Institutes, p. 578. explains some of the terms of this
definition. ** Dtto tunt conventionum genera ; unum eorum, ques spedale nomen habent, ex quo
" genere sunt cmplio-venditio, locatio-conductio, societas, mandatum, depositum, commodatum,
•» pignut, et similet contractus, qui, quod certum novien habent, dicuntur contractus nominati, et
" oUigniionem actionemque producunt, non utique propter nomen, quod extriiisecum quid est atq:
** accidcns ; sed propter utUitatem commercii, cujus indicium est, quod certo ac proprio nomine
** appellantur; vel potius quia hee conventiones ob frequentiorem mum talem accepere vim ac
" naiuram, qiuB etiamsi nihil specialiter dictum sit, ex ipso nomine satis intelligatur. Grot. L. 2.
* de Jure Bell, et Pac. 12. n. 3. Alterum genus est earum conventionum, qua: nomine quidem pro-
*♦ prio carent, sed quibus prceter consensum subest causa, ut hoc exprimit jurisconsidtus. D. 1. 7.
** § 2. Et hcB quoque cimventioncs ob/igationem et actionem pariunt. Causam definio dationem
«• vel factum certd lege, puta, si quid ttbi dedi aut feci eu lege, ut vicissim niihi aliquid dares aid
*' facercs." See further Fonbi. Notes on Eq. Tr, p. 326. A mere agreement by a creditor to
take a less sum than that which is owing to him, is nudum pactum. Heathcote v. Crookshanks,
a Term R. 24.; ||see tit. Accord and Satisfaction.^^ As to the nudum pactum, see Elsee v.
Gatward, 5 Term R. 143. A consideration executed will not support a subsequent promise,
unless the act were done at the request of the party promising. Dy. 272. Lampleigh v.
Braithwaite, Hob. 105. Hayes v. Warren, 2 Barnard. 141 . Robertson v, St. John, 2 Bro. Ch.
R. 140. or unless the party promising were under a moral obligation to do the act himself,
or to procure it to be done. Church v. Church, cited in Hunt v. Wotton, Sir T. Raym. 259.
Turner v. Watson, Bull. Nisi Prius, 147. (4th edit.) Trueman v. Fenton, Cowp. 544. An
agreement to settle boundanes, though nothing valuable is given, implies sufficient consider-
auon extending to both parties, who have an interest in shunning contention. Penn v. Lord
Baltimore, 1 Ves. 444.]

But

(B) What good in Law, aiid specifically enforced in Equity. 141

But if it be done by deed duly executed, under seal, this is pi, 308 309.
good in law, though there be no consideration, or no delivery Yelv. 196.
of possession ; because a man is estopped to deny his own deed, Cro. Jac. 270.
or affirm any thing contrary to the manifest solemnity of con- li'J^^^" A,V*
trading, {a) 2 Black. Com.

446. [A consideration is by our law necessary, though the agreement be evidenced by writings
unless the writing, as in the text, from its being of the highest solemnity, import a consider-
ation, or 'inless it be negotiable at law, and the interests of third persons be involved in its
efficacy ; for in this latter case as between the original parties, the want of consideration may
be averred, and will bar the plaintiff from recovering. Pearson v. Garnett, 4 Mod. 242.
JefFeries v. Austin, 1 Stra. 674. Gilb. Lex Praetoria, 388, 289. Fonbl. Notes on Eq. Tr. 535.
j|And so also between third parties, if it appear that the holder gave no consideration for the
instrument. Rees v. Headfort, 2 Camp. 574. Reynolds v. Chettle, ibid. 596. Patterson
V. Hardacre, 4 Taunt. 1 14. Delauney v. Mitchell, 1 Stark. 439.|| (a) Though the agreement
bfijinder seal, yet if there be no considqratJPOj. .equity will not agree specifically ; for as in
suchcase*TR5minal damages only^ould be recovered at law, equity, which follows the law,
will not give more' suT)stantial relief. iVes. 450. 1 Atk. 10. Fursaker v. Robinson, 1 Eq. Ca.
Abr. 123. Pr. Ch. 475. 8, C. Gilb. Eq. Rep. 479. S. C Tudor v. Anson, 2 Ves. 582.]

II Notwithstanding the case oi Fur saJcer \. Robinson, suprh, Randall v.
and the dictum of Lord Northington in Wycherly v. Wycherly, Randall, Prec.
2 Eden, 177, that he did not recollect a precedent of specific per- in Ch. 464.
formance of a voluntary agreement, tliere are precedents both ^^^'v y . "^'
ways. 427, Husband

V. Pollard, 2 P. Will. 467. Wiseman v. Roper, 1 Ch. Ca. 84. Frank v. Frank, Ibid. Pea-
cock v. Monk. 1 Ves. 135. Underwood v. Hitchcox, 1 Ves. 280. Griffin v. Hanson, 4 Ves.
344.

In some cases the court has held that it has a discretionary Prec.Chan.7S.
authority.

It seems to be now settled that the court will not interfere Morrice v.
against volunteers, unless in case of fraud ; noYfoi' them, by en- f Y|^"f qi'
forcing the specific performance of a mere voluntary agreement. Stapeiton v.
Stapelton, 1 Atk. 10.; and see 3 Atk. 399. 18 Ves. 149. Matthews v. Lee, 1 Madd. R. 565.
Crosbie v. M'Doual, 15 Ves, 148.

Unless, indeed, in those cases where a specific performance of Goring v.
marriage articles has been decreed in favour of collaterals, as wfo q „ ' j
being within the consideration of marriage. & Strode °

3 P. Wms. 245. Edwards v. Warwick, Ibid. 175.

And this cannot be done against a purchaser subsequent to Sutton v.
the articles or setdement. Pa^ ^-^"1*.

5 Meriv. 249.

And a voluntary covenant in a marriage settlement in favour Johnson v.
of a stranger, clearly cannot be enforced at law or in equity. I:'^]?.^'^'''

If, however, a voluntary deed is sufficient to pass the subject Colman v.

out of the conveyor, it will be specifically enforced in equity as p p ' ^ ^""^

a trust executed, and not resting in contract, as where stock is j *yg^ ■' '^^

actually transferred, or lands conveyed to a trustee, the court Ellison v. El- *

will execute the agreement as against the trustee and author of lison, 6 Ves.

the trust.l| Ir, f,f.v /' > 6 i, /< hi ■ - ■ /» / i. ^r > ,. Jf^' Griffin v.
II ar(^ r.^-'^r /j'l /f V Id:!'- .' < I Cjk.U' XYisfan8on,4Ves.

356. Pulvertoft V. Pulvertoft, 1 ^ V es. 99. Lechmere v. Carlisle, 3 P. Will. 222. Smith v.

French, 2 Atk. 24.5. Antrobus v. Smith, 12 Ves. 46.; and see Willan v. Willan, 16 Ves. 82,

Bayley v. Tyrrell, 2 Ball & B. 363.

So in equity, voluntary conveyances are good against the par- Vem. loo.
ties, and cannot be revoked; nor will the court interpose in 1^2. 42'a456.

behalf

1V2 agreemp:nts.

464. 1 Ch- R. behalf of one volunteer against another ; but if they affect cre-
173. sCh. R. jitoj-s purchasers, or younger children, the court will set them
•132. NV ornill • i *^ » ^ o

v.Jac"b, «Slile. ,„ .,

.•5 Meriv. 271.11 For cases where voluntary deeds and settlements are held void as against cre-
ditors, &c. see tit. Fraud.
2 Vent. 365. If there be a defective conveyance, without an equitable con-

1 Vern.37. sideration, a court of equity will not oblige the party to make
1 0^11.^147. ^t good, though there be a covenant for further assurances ; as

2 Krcem. 65. if a man makes a feoffment to a stranger, without livery, the
[(a) Equity will feoffor, or his heir, shall not be obliged to make good that feoff-

not supply the ^lent, but it shall be construed in equity to be an estate at will,
want Ota sur- -^ • i / \

render of a as it IS at law. (a)

cojjyhold in favour of a bastard daughter against the heir of her father, though the father had
covenanted to convey it, and make further assurances ; for the daughter is, in consideration of
law, a mere stranger, nuUiusJilia, and the conveyance is merely voluntary. Fursaker v. Robin-
son, lEq. Ca.Abr. 123.]

Abr. Eq. 24.5. If an annuity is granted by one to his housekeeper, with a
pi. 7. 93. p. bond for payment of it, and the bond is lost, equity will decree
11 nf"r^ payment of the annuity ; for service is a consideration, and no
the payment turpis contractJis shall be presumed, unless proved, {b)
of a bond given to an innocent woman whom the obligor hath seduced, for it is pnBmium pu-
doris. Marchioness of Annandale v. Harris, 2 P. Wms. 432. Eq. Cas. Abr. 87. p. 6. S, C.

3 Bro. P. C. 445. S. C. Cray v. Rooke, Ca. temp. Talb. 153. S. P. And a bond of this kind
hath been holden good at law. Turner v. Vaughan. 2 Wils. 339. So where a provision has
been made for her by an ineffectual conveyance, it will interpose in her behalf both against the
grantor himself and his repreientative. Ord v. Blackett, cited in 2 P. Wms. 435., and Carew
y. Stafford, Ibid. See the last case in Ambl. 520. by the name of Gary v. Stafford. Nor will
it relieve against a bond given even to a common prostitute, if there be no fraud in the case,
though the application be made by the representative of the obligor. Hill v. Spencer, Ambl.
641, ; a circumstance which hath been formerly thought to strengthen the ground for relief.
Matthew v. Hanbury, 2 Vern. 187. Alitor where there is fraud, as where the plaintiff claims it
as prcEmium pudicilia, and she is found to have been a prostitute prior to the time of her
having been connected with the party giving it. Clark v. Periam, 2 Atk. 333. But bonds of
this kind entered into ex turpi causa are void ; as where a woman, knowing a man to be mar-
ried, submits to his temptation. Priest v. Parrot, 2Ves. 160.; or where a woman having
ignorantly married a man who had another wife alive, upon coming afterwards to the know-
ledge of his situation, continues to live with him. Lady Cox's case, 3 P. Wms. 339. So
where the condition of the bond was that the parties should live together in a state of forni-
cation. Walker V.Perkins, Administrator, 3 Burr. 1568. 1 Black. R. 517. S.C] put not-
withstanding the case of Priest v. Parrot, it is decided that a bond given by a married man to
_a woman who had cohabited with him knowing him to be married, on the cessation of
intercourse may be enforced at law. Nye v. Moseley, 6 Barn. & Cres. 133., and see S. C. mm.
Knye v. Moor, 2 Sim. & Stu. 260.|1

2Ven7'6?r^' ^^^^"^'^y ^i^^ "ot carry a merely voluntary covenant beyond the

letter of it.
[(c) This rule In decreeing the execution of agreements, it regards the. intent
inlhvour of^ ^^ the parties, and does not confine itself to the strictly legal
issue male by operation of the words. Where, therefore, marriage articles,
many cases ; literally taken, would give the husband or wife an estate tail, it
first, where decrees a strict settlement ; for otherwise the provisions for the
cle7t^!^in '^^"^ (^)' ^^^ ^'^j^^^ ^f ^^^ settlement, might be defeated, (rf)]
Jones V. Laughton, 1 Eq. Ca. Abr. 392. pi. 2. Nandick v. Wilkes, 1 Eq. Ca. Abr. 393. pi. 5.
Cusack v. Cusack, 1 Bro. P. C. 470. Trevor v. Trevor, l P. Wms. 622. Dodd v. Dodd, Ambl.
274. Robmson v. Hardcastle, sTerm R.252. So where there are articles before marriage,
and a settlement IS made after marriage in the words of the articles, as in Streatfield v. Streat-
field, Ca. temp. Talb. 176. ; or where there are both articles and settlement before marriage,

and

(B) What good in Law, and specifically enforced i?i Equity. 143

and the settlement is made in pursuance of the articles, as in Honor v. Honor, 1 P. Wms. 125.
Roberts v.Kingsley. 1 Vcs. 258. But otherwise, where the settlement made before marriage is
not in pursuance of the articles; for then the parties will be presumed to have come to a new
agreement. Legg v. Goldwire, cited in Ca. temp.Talb. 20. Partyn v. Roberts, Ambl.515.
And the same equity arises to the issue female. Barton v. Hastings, Gilb. Eq. R. 113. West
V. Erissey, 2 P. Wms. 349., and Hart v. Middlehurst, 5 Atk. 371. But this must be under-
stood where the articles make no other provision for them. Powell v. Price, 2 P. Wms. 535.
{d) But where this mischief does not occur, or where the intention of the parties to create an
estate of inheritance is not sufficiently explicit, it seems the rule is not applicable. Chambers
v. Chambers, Mos. 333. Green v. Eakins, 2 Atk. 476, Partyn v. Roberts, Ambl. 315. Cordwell
V. Mackrill, Ambl. 515. Highway v. Banner, 1 Bro. Ch. R. 584.

In contracts proper for a specific performance, equity considers Money cove-
them often as actually performed {a) from the time they are entered nanted to be
into. Money covenanted to be laid out in land, it considers as '^id out in
land; and land articled to be sold, it treats as money; and in- ^^"'j' "'''Is^
vests each with the qualities of the other. a,,,! pot the

executor. Chaplin v. Homer, 1 P. Wms. 483. Scudamore v. Scudamore, Pr. Ch. 540. Ed-
wards V. Lady Warwick, 2 P. Wms. 171. Lechmere v. Earl of Carlisle, 3 P. Wms. 221.] [jSee
Thornton v. Hawley, 10 Ves. 219.|1 [Settled on the wife of a freeman of London in heu of
dower, will not bar her of her customary part. Babington v. Greenwood, 1 P. Wms. 530. It
will not be personal assets. Earl of Pembroke v. Bowden, 3 Ch. R. 115. 2 Vern. 52. S.C.
Lawrence v. Beverley, 2 Keb. 84 ) . cited also in 1 Vern. 47 1 . It shall be subject to the curtesy
of the husband. Sweetapple v, Bindon, 2 Vern. 536. Otway v. Hudson, 2 Vern. 583. Cun-
ningham V. Moody, 1 Ves. 176.; but not to the dower of the wife, because she is not dowable
of an equitable estate. It shall pass as land by a will, under sweeping words, if at the time of
making the will the testator has an equitable estate therein. Davie v.Beardsham, 1 Ch.Ca. 39.
Prideaux v. Gibben, 2 Ch. Ca. 144. Milner v. Mills, Mos. 123. AUeyn v. Alleyn, Mos. 262.
Greenhill v. Greenhill, 2 Vern. 679. Pr. Ch. 320. S. C. Shorer v. Shorer, 10 Mod. 39. Lingen
V. Sowray, 1 P. Wms. 172. Pr. Ch. 400. S. C. Langford v. Pitt, 2 P. VVms. 629. Guidot v.
Guidot, 3 Atk. 254. Potter v. Potter, 1 Ves. 437. Gibson v. Lord Montfort, 1 Ves. 494,
And it will not pass as money under a general bequest to a legatee, unless described as so much
money agreed to be laid out in land. Cross v. Addenbroke, and Fulham v. Jones, cited in a
note 5 P. Wms. 221.] [[See Biddulph v. Biddulph, 12 Ves. 16I.H [Where a recovery would be
necessary to give a person the absolute interest in it, if land, a fine will not be sufficient.
Colwell v. Shadwell, cited in 1 P. Wms. 471. 485. Edwards v. Countess of Warwick, 2 P.
Wms. 171. Collet V. Collet, 5 Atk. 11, TrafFord v. Boehm, 3 Atk.447. Carter v. Carter,
Ca. temp. Talb. 272.] USee 7 G. 4. c. 45. § 1, 2. empowering a court of equity, where money
is directed to be invested in land, to be settled in such manner that the first tenant in tail
might bar the estates tail and remainders, to order the money to be paid to the tenant in tail;
and 6 Ves. 116. 156. 8 Ves. 609. 9 Ves. 462. 1 Jac. 234.1| [But equity will not consider
money as land, unless the covenant or direction to lay it out in land be express. Symons v.
Rutter, 2 Vern. 227. Curling v. May, cited in 3 Atk. 255.] iJSee Pearson v. Lane, 17 Ves.
104.11 [And money thus circumstanced shall be deemed as part of the personal estate of one
who might have aliened it, there being no other use but to himself. Chichester v. BickerstafF,
2 Vern. 295. Pulteney v. Earl of Darlington, 1 Bro. Ch. R. 236. Wade v. Pagett, 1 Bro. Ch.
R. 368. ; but see Lechmere v. Earl of Carlisle, 5 P. Wms. 220. Ca. temp. Talb. 90. S. C —
Where land is agreed or directed to be gold, it seems the creditors of the bargainor may compel
the heir to convey the land. Best v. Stamford, 1 Salk. 154. (c) Therefore the personal
estate of a man, who, in consideration of marriage with an orphan of a citizen of London,
had covenanted to take up his freedom of the city, was divided according to the
custom, though the covenant was not performed. Frederick v. Frederick, 1 P. Wms. 710.
iBro.P.C. 7.]

3. Of the Manner in iiohich they are to he performed.

If an agreement be to quit the possession of lands, the court Qerrard v.
will not decree a conveyance of the lands themselves ; but if the Vaux, Vern.
agreement was to convey the lands, it is said that the court would 121. How
have decreed the agreement, though the party was not apprized agrfements
what estate he hadlr. the lands. Z'j^ZZ-

cuted at law, vide heads of Assumpsit and Covenant,

144

AGREEMENTS.

If one is bound to transfer 300/. East-India stock before such
a time, which he neglects to do, and the stock is much risen, he
shall be obliged to transfer the stock in specie, and account for
all dividends from the time that it ought to have been trans-
ferred.

sure of damages at law for not transferring stock, see Shepherd v. Johnson, 2 East, 211.

M'Arthur v. Lord Seaforth, 2 Taunt. 257. Harrison v. Harrison, 1 Car. & P. 412.j|

If a creditor agrees with his debtor to take less than his debt,
so that it be paid precisely at such a day, and the debtor fails of
payment, he cannot be relieved, for cujics est dare, ejus est dis-
ponere.
lieve in such case, if the security be bettered. 1 Ch. Ca. 110.] HSee ante, Accord and Satis-
faction!^

If money be lent on a mortgage, at 5 per cent, and the mort-
gagor covenants io pay 6 per cent, if he make default for the
space of sixty days after the time of payment ; if he makes de-
fault, the court will not relieve, this being the agreement of the
parties, [a)
Wyse, 2 Vern. 289., and in Shode y. Parker, 2 Vem.3I6., the interest was reserved at 6l. per.
cent, with an agreement to accept 5l. per cent, if duly paid ; a statement doubtless correct, as
it reconciles the case to the other decisions upon this point, which at present it clashes with.
See Jury V. Cox, Pr. Ch. 160. Walmsley v. Booth, Barnard. Ch. R. 481. Nichols v. May-
nard, 3 Atk. 519. 5 Burr. 1374.] USeejaoii. tit. Mortgage}^

If a lessee for a long term of years covenants to lay out 200/.
upon the premises within the first ten years, and lays out but
30/. and after the expiration of thirty years of the lease, the
lessor brings an action o^ covenant, and recovers 150/. damages,
equity will neither relieve against the damage, nor decree the
money to be now laid out in the improvements ; for though the
damages seem excessive, yet the jury were proper judges ; and
to degree it to be laid out now the lease is almost expired, is not
proper ; for it is probable the lessee would not be so careful in
laying it out in lasting improvements, as he would have been if
laid out at first.

II If a regular corporate resolution has been passed, and upon
Queenbo-°"° ^^^ ^^^^^ *^^ ^^' expenditure has been incurred, the court will
rough, 1 Sim. compel the corporation to make a legal grant in pursuance of the
resolution, though not under the corporation seal.

Where there is a contract to sell at a valuation, by A., B., and
C, the court will compel the vendor to permit the valuation.

Where the vendor of an estate having lost his title-deeds,
agreed to give real security for the title, the court held that per-
sonal security was not sufficient, and that he must purchase real
estate for the purpose.

If a person possessed of a term, contracts to sell the fee, he
rSwans't. 54.; *^^""ot compel the purchaser to take, but the purchaser can com-
andseeioVes. pel him to convey the term, and the court will arrange the
316. equities between the parties.

Ormond v. Equity has the power to compel the specific performance of a

Anderson, complete contract, but cannot add any term not agreed on.]!
2 Ball & B 569. ; and see Id. 28«.

Gardner v.
PuUen, 2 Vern.
394. Vide
xupr^CB), 1.
note c. II And
as to the mea-

Vern. 210.
[Ambl. 332.
But qu. whe-
ther equity
will not re-

2 Vern. 134.
Halifax v.
Wiggins,
[(a) As this
case is stated in
Lady Holies v.

Vern. 31 6.
Barker v.
Holder, 1 Eq.
Ca. Abr.28.
pi. 5. S. C.

Marshall v.

& Stu. 520

Morse V.

Merest,

6 Madd. 26.

Walker v.

Barnes,

3 Madd. 247.

Wood V.
Griffith,

II 1. Of the Firsts Second^ and Third Sections of that Statute.^

T^HE common law required no other solemnity in passing lands ^o. Lit. 48.

or tenements, but that of livery and seisin, which being a e'|o q'n' /-i,
translation of the feud coram paribus curtis^ and testified by them, j^qiJ^ Abr. 7.
was held an act of sufficient notoriety to direct the lord of whom
to demand his service, and strangers against whom to commence
their actions ; but now,

By the 29 Car. 2. c. 3. § 1. it is enacted, " That all leases, 29 Car 2. c.5.
" estates, interests of freehold, or terms of years, or any uncer- § ^'
" tain interest of, in, or out of any messuages, manors, lands,
*' tenements or hereditaments, made or created by livery and
" seisin only, or by parol, and not put in writing, and signed
*' by the parties so making or creating the same, or their agents
" thereunto lawfully authorized by writing, shall have the force
" and effect of leases or estates at will only, and shall not, either
" in law Qr equity, be deemed or taken to have any other or
*' greater force or effect ; any consideration for making any such
** parol leases or estates, or any former usage to the contrary
" notwithstanding.

" Except leases not exceeding the term of three years from § -•
" the making thereof, whereupon the rent reserved to the land-
" lord, during such term, shall amount unto two third parts at
" the least, of the full improved value of the thing demised."

Also it is enacted, " That no leases, estates or interest, 5 '•

*' either of freehold or terms of years, or any uncertain interest,
** not being copyhold or customary interest of, in, to or out of
*' any messuages, manors, lands, tenements or hereditaments,
" shall be assigned, granted or surrendered, unless it be by
** deed or note in writing, signed by the party so assigning,
" granting or surrendering the same, or their agents thereunto
*' lawfully authorized by writing, or by act or operation of law."

11 Notwithstanding the words of the first section, it is settled Clayton v.
that parol leases for more than three years have the effect of Blakey,
leases from year to year, and require a notice to quit, in order ^„/g^ ' ' '
to determine them, the meaning of the statute being that such 5 Term R. 471.
leases shall not create a term. and Holt's

N.P.C. 47

A parol lease for three years, to satisfy the statute, must Rawlins v.
commence from the time of making, and cannot be made to r^ "m^'sc •
commence at a subsequent day. and see Ryl'ey

V. Hicks, Stra. 651. Legg v. Strudwick, 2 Salk. 414.

Where a lease had been made by deed for twenty-one years Hoby v. Roe-
to A.., who afterwards took B. into partnership, and A. and B. ^"JJ^' "^ T^"""-^-
made a parol agreement with the landlord, that if he would en-
large the building, they would pay him 10 per cent, on the cost,
in addition to the original rent, for the rest of the term, which

Vol. I. L exceeded

140

AGREEMENTS.

excccdeil three years, and the new building was consequently
made, the Court of Common Pleas held that this agreement
was not within the statute, for that as whatever was subsequently
built became part of the premises demised, it was a collateral
contract.

Though the statute does not require that an assignment should
he by deed, it absolutely requires it to be in writing, and there-
fore, where a parol assignment was made of a lease from year
to year granted by parol, it was held void under the statute.

The mere cancelling, in fact, of a lease, is not a legal sur-
render.
Archbishop of York, 6 East, 86. ; and see Doe v. Thomas, 9 Bam. & C. 288.

A surrender of a lease may be made without deed ; as where
a mortgagee wrote on the mortgage-deed, " Received of ^. B.
" for principal and interest, and I do release and discharge the
** within premises from the term of 500 years," this was holden
a sufficient surrender.

If the landlord accept an under-tenant as his tenant, with con-
Cook, 2 Barn, sent of the original lessee, and distrain upon his goods, this
* i^'^'pi'' amounts to a surrender of the original tenant's term, by oper-
v"scuUhorpe* ation of law, though there is no surrender in writing.
1 Barn. & A. 50. Stone v. Whiring, 2 Staik. 235. Hamerton v. Stead, 3 Barn. & C. 478.
Johnstone v. ^"^ ^ ^^^ notice to quit, though accepted by the landlord,

Hu.ldlestone, cannot operate as a surrender.

4 Barn. & C. 922

Whitehead v.

Clifford,

fi Taunt. 5 18.;

and see Ibid.

519.

Walls V. At-

Farmer v.

Rogers,

2 VVils. C6.

Dotting V.

Martin,

1 Camp. 518.

Roc dem.
Berkeley v,

Fanner v.
UojTcrs,
8 \Vils. 26

Thomas v.

If the landlord accept possession of the demised premises
from the tenant, he cannot subsequently sue him for use and
occupation,
in writincr.

although there is no surrender of the tenant's term

cbeson, 3 Bing, 462.

And so if the landlord let them to another tenant. ||

§ I.

2 Jones, 108.
Giiniorc and

II 2. Of Agreements tmthin the Fourth Section.\i

And it is further enacted, *' That no action shall be brought
whereby to charge any executor or administrator, upon any
special promise to answer damages out of his own estate, or
whereby to charge the defendant upon any special promise to
answer for the debt, default or miscarriages of another person ;
or to charge any person upon any agreement made upon con-
sideration of marriage, or upon any contract or sale of lands,
tenements or hereditaments, or any interest in or concerning
them ; or upon any agreement that is not to be performed
within the space of one year from the making thereof, unless
the agreement ujion which such action shall be brought, or
some memorandum or note thereof, shall be in writing, signed
by the party to be charged therewith, or some other person by
him thertunto lawfully authorized.

111. Of Promises by Executors, Administrators, &c.|l

The clause which enacts, that no action shall be brought, Sfc.

to charge an executor, S^c. extends not to promises made before, shutter
though to be performed after the making of the statute; for it i Freem. 466.
would be against natural justice, that a promise made upon good S- ^- Vent.
consideration should be destroyed by the retrospect of a law t\?.'ti^
which none could divine would be made. 227! 2 Show.

R. 1 6. S. C. ||Rann v. Hughes, 4 Bro. P. C. 27. 7 Term R. 550. n.jj

A. promised if the widow of an intestate would permit him to Tomlinson v.
be joined with her in the letters of administration, that he would ^^H'^^bl.
make good any deficiency of assets to pay debts. Lord Hard-
isoicke held this promise not within the act ; nor within the first
branch of the section, for A. was not administrator at the time
of making it ; nor within the second, for here is a new distinct
consideration.

The plaintiff in his declaration need not shew any note in writ- Raym. 45o,
ing, but it will be sufficient for him to produce it on the trial; ^^^' ^ Jones,
but if such promise is pleaded in bar of another action, it must g gaik ^i9
be shewn to be in writing, so that it may appear to the court to
be such a promise upon which an action will lie.

y2. Of Promises to answer for the Debt, Default, or Miscarriage

of another, jj

On the clause, that no action shall be brought on a special Salk. 27. pi.
promise to ansivei-for the debt, defaidt, &c. of another, it has been V'l^^ I* ^^*
resolved that if A. is about hiring a horse from B,, and C, to 249. LdrRaym.
encourage him to lend the horse, promises that^. should deliver 224. sLd.
him safe, this is a collateral promise, and an undertaking within Raym.
the statute; for C. subjects himself to an action on the breach o°^^'„^t^^^j
of the original contract by A., against whom detinue lies on the 250.
bailment. So if two come to a shop, and one of them contracts
for goods, and the seller does not care for trusting him, where-
upon the other says, let him have them, and I will undertake he
shall pay you ; but if the promise be, I will see you paid ; or I
will be your paymaster, it is otherwise. So if A. comes to B,
and tells him, let your horse to J. S. and I will see you paid the
hire ; there the hiring is to A. and not to J. S. who is considered
as servant to A. So, in all cases where the whole credit is given
to the undertaker, he alone is liable to an action.

[A doubt was formerly entertained, whether, if the undertak- g Term R. so.
ing of a third person were before the delivery, it were within the Cowp. 227.
statute. But the general line now taken, is, that if the person ^ ^^- Black,
for whose use the goods are furnished is liable at all, any promise " *
by a third person to pay that debt, must, in all cases, be in
writing.

If ^., in consideration that B. will stay proceedings in an action pisi, v. Hutch-
he had commenced against C. to recover a sum of money due inson, 2 Wils.
from C. to him, promise to pay that money, such promise must ^'*'
be in writing, for it is to pay a debt of another person still sub-
sisting : but where in consideration that the plaintiff in an action
of assault and battery against J. S. would withdraw his record, ^^ed v. Nash,
and forbear to proceed, the defendant promised to pay him 30/. iiQ^^^ijiether
the court held the promise not to be within the statute, for the [1,]^ case is

L 2 consideration

146

AGREEMENTS.

considerntion wns new, here was no subsistinf; debt ; it could not
be known before the trial whether the plaintiff would recover any
damages or not]

\\A., without the leave or licence of the plaintiff, wrongfully
rode the plaintiffs horse, and caused its death, and the defend-
ant in consideration that the plaintiff would not sue y^., promised
to pay the plaintiff for the damage sustained. Held, that as A.
was liable to the plaintiff for the wrong, this was a collateral
promise of the defendant, and consequently not being in writing
was void. II

[J. S. becoming insolvent, made a bill of sale to the defendant
of all his goods in his dwelling-house in trust to be sold for the
benefit of his creditors. After the defendant had taken possession,
the landlord came to distrain for rent, and to prevent the dis-
tress, and that the sale might go on, the defendant promised to
pay it This promise is not within the statute.]

ijlf -/4., at the request of B., enter jointly with him into a
bond to indemnify a third party, and B. promise to save A.
harmless from all loss by reason of the bond, this is not a pro-
mise requiring writing within the statute. {a)\\
indemnifv the plaintiff against all costs of a tithe suit, in consideration that the plaintiff (de-
fendant \n the tithe suit) would allow defendant to defend it in plaintiff's name. Adams v.
Dansey, 6 Bing. 506.

[Wherever a man is under a moral obligation (a), to do a thing,
and another does it without request, a subsequent promise to
pay is good, though not in writing ; as where an overseer pro-
mises by parol to pay an apothecary who, without his knowledge,
has administered medicines to a pauper.]
obligation on the overseers to provide medicines for the poor is a legal one, and it is at least
doubtful, whether in any case a mere moral obligation is a sufficient consideration to support
an express promise; it clearly is not sufficient to raise an implied promise. See the elaborate
note to Wennall v. Adney, 3 Bos. & Pull. 249. In Wing v. Mill, 1 Barn. & Aid. 104. the
court held that an action was maintainable by an apothecary against the overseer of the
parish where a pauper was settled, for medicines furnished to the pauper in another parish
where he lived, the overseer having expressly |)roraised to pay ; — but here also there was a
legal obligation on the overseers of the parish of settlement to provide for the pauper, which
they had acknowledged by making him a weekly allowance. In Atkins v. Banwell, 2 East R.
505. it was decided, that a parish where a pauper was taken ill and died, could not recover
the price of mrdicines and necessaries furnished to him against the parish in which he was
settled, since there was no legal obligation to reimburse the amount, and there was no express
promise; and see Lamb v. Bunce, 4 Maule & S. 275. There could be no ground for requiring
writing to such a promise as that in the principal case, since it is notwilhin thescopeof any clause
in the statute ; and see 1 Smith R. 305. 1 Dow. & Ry. 541. 1 Car. & Pa. 132. 5 Barn. & C. 738.||
Goodman v. |jSo also a promise to pay the debt of a debtor, in consider-

& A^*97 • '^"d ^'*°" ^^ ^"^ being discharged out of custody, is an original
promise, and not within the statute, since the debt is ex-
tinguished by the discharge, and the debtor ceases to be liable.
Castling v. Aubert, 2 East, 325. Anstey v. Marden, 1 New R. 124.

So also a promise to execute a bail-bond for A. B., in con-
sideration of the plaintiff forbearing to arrest him, is not within
the statute.

not overruled
by Kirkhani
V. Marter,

wPII

Kirkhiun v.

Marter,

a Barn. & A.

613. See

Maggsv.

Ames, 4 Bing.

474.

Williams r.
Leaper,
.•J Burr. 1886.
2 Wils. 308.

IjBampton v.
r*ftulin,
4 Bing. 264.||

Thomas v.
Cook, 8 Barn
& C. 728.
(a) Nor is a
promise to

Watson V.
Turner, Scacc.
Tr. 7 G. 3.
Bull.N.P.284.
(4th edit.)
11(a) But the

sec Williams
V. Leper,
2 Wils. 308.
Jarmain v.
Algar, Ry. &
Moo. 348.;
and sec 4 Bing.
474.

Cbater v.

Beckett,

7 Tcnn R. 20!

But an agreement to pay a composition on the debt of
another is within the statute, since the debtor remains liable.

Bo also in cases of promises to pay for goods, SfC. supplied to Anderson v.

a third party, if the third party is liable at all the promise is Hayman, i H.

within the statute, and requires writing; but if the articles are Black. 120.

supplied entirely on the credit of the promiser, so that the third ^^*.^"" ^'

party is not liable, then the promise is not within the statute. 2 Term JI.80.
Jones V. Cooper, 2 Term R. 80. Browning v. Stallard, 5 Taunt. 450. Colman v. Eyles,
2 Stark, 62. ; and see 4 Bing, 474.

And there is no distinction whether the promise is made before Matson v.
the goods are supplied, or afterwards. aTennR so

The word *' agreement" in the fourth section, is held to import Wain v. Warl-
not merely the promise on one side, but also the consideration on ters, s E^jst, lo.
the other ; and, therefore, in cases within the section it is necessary g g /"^ag
that both should appear in writing, and parol evidence is inad- Saunders v.
missible to shew either, [a) Where, however, a letter was written Wakefield,
by the defendant to the plaintifTs attorney, undertaking to pay the ^ Barn. & A.
debt of another, parol evidence was held admissible to shew the ^^^ ^-^-^^''^an
amount, and also that the person receiving it was the plaintiff's 15 ]5agt cj^^.
attorney ; and in several late cases the courts have gathered a (a) This de-
sufficient consideration from the import of the instrument, where cision was
it did not appear in very clear terms on the face of it. TmtA^FMoii'

in Ex parte Minet, 1 4 Ves. 190., and in Ex parte Gardom, 15 Ves. 28S. his lordship decided
against it ; but its authority is now established by Saunders v. Wakefield, 4 Barn. & A. 595*
and Jenkins v Reynolds, 5 Bro. & Bing. 14.'

Thus where the defendant wrote a letter to the plaintiffs, Boehm v.
**our mutual friends, Messrs. JR. J. S., having accepted the Campbell,
" underwritten bill (h'awn on them by your firm, I hereby give ^ ^}"^'}f'' .
" my guarantee for the due payment of the same, should it be ^"gtace *^'^™
*' dishonoured by the acceptors;" and a copy of the bill was 1 Holt,N.'p.C.
at foot: the court held that the consideration of forbearance to 15>. Pace v.
sue I{. J. (S., and of giving them time by taking a bill, suffi- Mi""sl'> 1 Bing.
ciently appeared on the face of the guarantee to satisfy the seifv^Mosd"
statute of frauds. 5 Bro. «ife Bing'

211. Stead v. Liddard, 1 Bing. R. 19(5. Benson v. Hippius, 4 Bing. 455*

But where the guarantee was in these words, "To the amount Jenkins v. Rcy-

** of 100/. consider me as security on J. CJs account; " it was ^'i|?' ^ ^'■'^•

held insufficient, for want of a consideration appearing. ^^^^ '"S* A^ '

V. Bromfield, 2 Chitt. 205. Morley v. Boothby, 3 Bing. 107. 10 Moo. 395.

Where the original guarantee is in writing, so as to satisfy the Gibbons v.

statute of frauds, it is not requisite that a subsequent acknow- M'Casland,

ledgment of the guarantee, relied on to take the case out of the ^ Barn. & A.

statute of limitations should be also in v/riting ; a parol ac- ^^°*ijefore ^he

knowledgment is sufficient. 9 q. 4. c. 14. :

for which see tit. Limitation qf Actions (E).

3. Of Agreements made upon Consideration of Marriage.

It is now settled, notwithstanding former decisions to the con- (a) Philpot v.
trary (a), that this clause does not extend to mutual promises to }X''7*'"'r
marry; consequently such promises are binding, although not ]^>eenj,2'4i.
reduced into writing and signed by the party. {b)\\ S, c. ('/>) Cork

V. Baker, 1 Stra. 24. Harrison v. Cage, Ld. Raym. 386.; and see loVcs.43«. Bull.
N. P. 280.

L 3 If

1^0 AGREEMENTS.

A5r.E(L 19. If a parol agreement is agreed to be reduced into writing, and

'''i^ S C^""* in part executed, but the reducing it into writing is prevented

Free. Ch. 526. ^y ^raud, it may be decreed in ecjuity ; as if upon a marriage

S.C. Stra.236. treaty instructions are given by the husband to draw a settle-

S. C. Gilb. ment, and by him privately countermanded, and afterwards he

S*c ^'bf*^' '^^"^^ *" ^^^^ woman by persuasions and assurances of such settle-

Ch. k. 565?" ment to marry him.

Abr. Eq. 20, So where the defendant on a treaty of marriage for his daughter

2 Vem. 373. with the plaintiff, signed a writing comprising the terms of the

:.' "P agreement, and afterwards designing to elude the force thereof^
mention matle o, i^ i- °*'i il-j \ ^ ^ I

of the fraud, ^"d get loose from his agreement, ordered riis daughter to put

only that the on a good humour and get the plaintiff to deliver up that writing,
father con- ^nd then marry him, which she accordingly did, and the de-
match *° ^ *^ fendant stood by at a corner of the street to see them go by to be

* married ; and the plaintiff was relieved on the point of fraud.

Fr em" 29 f ^" ^ ^^^^ exhibited for a marriage portion, the chief evidence

S .C. Where a ^^ support it was a letter proved to have been written by the
letter from the father's direction, where it was said he would give 1500/. por-
father, pro- tion with his daughter, and that he was afterwards privy to the
don"and''a '^" "^^^""iag^, and consented to it, and the portion was decreed the
'marriage had l>usband.

in pursuance thereof, has been held sufficient, vide 2 Vent. 361. 2Vern.200. sCh.R. 157.
Prec. in Chan. 561. Where an uncle in his letter promised his niece lOOO/. portion ; but in
the same letter dissuaded her from marrying the person ; Lord Chancellor would not decree
the payment, but left the party to his action at law. 2 Vern. 202. [A letter from a father to
his daughter that he will give her 3000/. not shewn to the husband, who afterwards accepts of
£000/. under a will, is no foundation for a decree. See a different state of this case in
9 Mod. 3. 2 P. Wms. 65. Nor is a letter promising a portion, but not reducing it to any cer-
tainty. Hall V. Butler, Eq. Ca. Abr. p. 7. Gilb. Lex. Prsetor. 243. For a letter cannot be
set up as an agreement unless the terms of the contract are distinctly set forth therein. Sea-
good V. Neale, 1 Stra. 426. Pr. Ch. 560. Clerk v. Wright, 1 Atk. 13.] j'See Luders v. Anstey,
4Ves. 501. 5Ves.216. The amount of consideration and the subject matter must appear.
Kennedy v. Lee, 5 Meriv. 44 1.|| [But a letter, (though not signed) referring to, and promising
to perform an agreement in w;hich the terms are set forth, is sufficient. Tawney v. Crowther,
3 Bro. Ch. R.318. ||And it is said parol evidence is admissible to shew what l^ras the thing
rclerrcd to. Clinan v. Cook, 1 Scho. & Lef. 53. ; and see Brodie v. St. Paul, ) Ves. jun. 326.
And a letter is binding, though the writer look to the execution of a more formal instrument.
I'owle V. treeman, 9 Ves. 351. Whether a note written in the third person offering to pur-
chase and accepted, is a sufficient agreement, qucsre Mofison v. Tumour, 18 Ves. 175. The
court will not decree a performance on letters, unless on a fair interpretation they import a
concluded agreement. Huddlestone v. Briscoe, 1 ] Ves. 59 1. Stratford v. Bosworth, 2 Ves. &
A ^'*^' iv/ 1 1 ^^^ ^°®*^ ^'* Conynghame, 1 1 Ves. 550. Selby v. Selby, 3 Meriv. 2. Boys v.
Aycrst, 6Madd.316. Randall v. Morgan, 12Ves.67.|| Qzi. Whether a court of equity will
decree an agreement entered into by letter, if a deed appear to have been afterwards framed
/ 1 %1k' executed), varying the terms expressed in the letter ? Cookes v. Mascal, 2 Vern. 35.
ur It the terms be varied by parol ? Jordan v. Sawkins, 5 Bro. Ch.R. 388. See 2 Ch. Ca. 180.
ruzgiD. 21 o. 2 balk. 444. ||Whether a settlement made after marriage, reciting a parol agree-

a^cement m wntmg may be discharged by parol, see 1 Vern. 240. 2 Ves. 376. A bond
orw,:i «,^ r woman to her intended husband, conditioned to settle an estate upon him in fee, is
f.^ ntl^.!;f *" ^ the agreement so specified in the condition on a bill in equity to carry it
Sn^7f a ' \°^ ''•^'^ ^""^ *' '^^- ^'«""el V. Buckle, 2 P. Wms. 242. it is a sufficient
3 Atk 50T P^''v"' « "?TJ'^''^""^'^"^''«"^scribe a deed as a witness only. Welfordv.Beazelv,
itmon« nf'.'Ko .f.r* •. i' "^- '^'^ *° t''^ signature, in order to comply with the requi-

nnd TeL k h,Tth ; V"T- ^^''^ '''*^ ^^''''' ^^ 8'^'"g authenticity to the whole instrument ;
ihcre a fj V r ^^ ^'^^'^ '^ IS immaterial in what part of the instrument it is found : bvM
HDcrc a iiarty had given written instructions to his agent for a lease, and had inserted his

(C; AgreetnenU within the Statute of Frauds. (4th Section.) 15 J

name in those inetructiona as applicable only to a particular purpose, the Court of Exchequer
held that this did not amount to a sufficient authentication. Stokes v. Martin, 1 P. Wms. 771.
note 1. It was formerly thought necessary that both parties should sign; but in the case of
Cotton V. Lee, before the Lords Commissioners, 1770, it was determined to be sufficient if the
party charged has signed. Cited in 2 Bro. Ch. R. 564. An agreement signed by one party
may, in some cases, be conclusive against both. Owen v. Davis, 1 Ves. 82. [[Seton v. Slade,
7 Ves. 265.|| [But, though the contract itself must be in writing, an authority to buy, or treat
Bs agent for another, may be good without writing. Vin. Abr. tit. Contract and Agreements (H),
p. 45. Wedderburne v. Carr, in the Exchequer, Tr.T. 1775. S Wooddes. 427.] ||Coles v.
frccothick, 9 Ves. 254. 250. Clinan v. Cooke, 1 Scho. & Lef. 22. Barry v. Barrymore, Ibid.
28. Emmerson v. Heelis, 2 Taunt. 38.||

But where on a marriage treaty the lady's father proposed to Abr. Eq. 21.
give 4500/. portion, and the husband v^^as to settle 4 or 500/. per Bawdes and
ann. for a jointure; the father and intended husband went to Amhnrst. [Pr.
Mr. Minshid's chambers, who hearing the proposals on both ^'^- \^?'^' S'
sides took down minutes or heads thereof in writing, and the ^j^/te's ob-
same day gave them to his clerk to draw a settlement according servations up
to the terms of the agreement ; the next day the father fell sick on this case,
suddenly, and died in two hours after, and the next morning the 1, j ^^p^f
marriage was consummated; and on a bill brought to have a v. Trecothick^
specific performance of the agreement, my Lord Chancellor de- 9 Ves. 254.
creed it to be within the statute oi frauds, and said he knew no Griffin v. Grif-
case where an agreement, though written by the party himself, fi"»6Ves.i79.n.
should bind, if not signed or in part executed by him [a) ; and ^ Harrop
that those preparatory heads might have received several alter- 7 Ves. 541.
ations or additions, or the agreement might have entirely broke Selby y. Selby,
off upon some further enquiry of the party's circumstances ; and '^ ^^^^•■'v- 2.II
this decree was thought very just by the bar, who all agreed si<Tned and
with my Lord Chancellor, that if the marriage had been on the given by ahus-
foot of this writing, and the father had been privy and consent- band to his

ing to it, that he should afterwards have been oblig-ed to execute ^^^'l previously
1 .° ^' , f. =" to their mar-

his part thereof. riage, promis-

ing to rectify a mistake in the settlement, in consideration of which she was induced to execute
it, was holden to be part of the settlement, and binding on the husband and his assignees,
Tyrrell v. Hope, 2 Atk. 558.]

On the marriage of the plaintiff with the defendant's daughter, 25 Jan. 1724.
the defendant promised to give her 450/. portion, and accordingly 9" ^''^^ ^"'^
paid the plaintiff 200/. in part, but took a bond from him for it adjudged'
till a suitable settlement should be made, and the defendant him- between San-
self gave particular directions concerning the settlement, which sum and
was drawn accordingly and engrossed; but before it was executed Butter,
thp plaintiff's wife died, and the bill was brought to have the
200/. bond delivered up, and the remaining 250/. paid ; the de-
fendant pleaded the statute o^ frauds and perjuries, the agree-
ment not being reduced into writing and signed by the parties ;
and by way of answer denied that the 200/. was paid in part of
the portion, but said it was lent the plaintiff, and the bond given
for it ; and the plea was allowed ; for if the marriage should be
looked upon as an execution of the agreement on the one side,
so as to take it out of the statute, it would entirely evade it; for
all promises of this kind suppose a marriage either already had
or to be had.

L 4 114. Of

16^

AGREEMENTS.

Attorney-
General V.
Day, 1 Ve«.

SI 8. ||01ng(len
▼. Uradbcar,
12 Vcs. 466.11

Ves. 931.

IbkL

Cox ▼. Peclo,
2 Bro. Ch. R.
S34.

n*. OfContracts for Saleof Lands,Tenements,andHereditaraents.||

[A judicial sale of an estate under a decree of the Court of
Chancery is not within the statute. Thus A. being likely to die,
made a conveyance of a real estate in favour of a charity, and
then made a will, by which he gave 3000/. (the exact value of
that land,) and also 250/. to the same charity, and gave the
estate to D. (wife of B.) and C. A bill was brought for an ac-
count, and for the direction of the court for a settlement of the
estate under the will ; and a decree was had thereupon, and the
master was thereby directed to receive a scheme for carrying the
conveyance into execution ; the foundation of part of which was
to consider, in what way the money should be laid out, and a
perpetual fund created for the maintenance of the charity. The
master reported a scheme for laying out the money in the pur-
chase of lands ; and the case being set down to be heard on the
matter reserved, the court made a decretal order confirming the
master's report, and ordering that the scheme should be approved
of, and the other matters therein carried into execution. These
directions were all acquiesced under by B. and D. who survived
him. After her (Z).*s) death, an information was brought on
behalf of the charity, together with the administratrix of D. to
have this purchase carried into execution by the aid of the court
against the devisee of the heir at law of Z). and the infant son of
C. the co-devisee with Z). And it being objected that there was
no agreement signed pursuant to the statute of frauds, one ques-
tion was, whether the transactions which passed in the life-times
of Z). and C. amounted to a binding agreement on them for the
Bale of the lands ? And Lord Hardwicke held, that here was
such an agreement as the court ought to execute notwithstanding
the statute ; this being a judicial sale of the estate. And upon
the same principle it is holden that purchasers before the masters
are out of the statute, and the court will in such cases carry into
execution against the ropresentative, a purchase by a bidder be-
fore the master, without the bidder's subscribing, after confirm-
ation of the master's report that he was the best bidder : the
judgment of the court taking it out of the statute. So if the au-
thority of an agent who subscribed for a bidder before the master
cannot be proved, yet if the master's report can be confirmed,
the court will carry it into execution, miless there be some fraud.
And Lord TJiurl&w was of opinion, where the attornies, con-
cerned in a suit by a first mortgagee for a foreclosure, agreed,
with respect to the final decree, that the estate should be sold,
the first mortgagee paid principal and interest, and the remainder
paid to the second mortgagee, but that the former should in the
mean time take a decree ; that if the first mortgagee made an
improper use of the decree, this agreement, though by parol,
might be read, on an applicatian to open the foreclosure, as an
agreement relative to a decree ; the attornies being competent to
make agreements relative to the orders of the court. And upon

that

that ground he admitted the evidence of it de bene esse, though
it had been rejected at the Rolls, because it was not in writing,
and therefore void under the statute.]

If there be a parol agreement for the purchase of lands, and ^^'^' ^q- 19.
a bill brought for a specific execution thereof, and the substance Eq^R 55
of the agreement is set forth in the bill, and confessed by the s. C. Gilb. Ch.
defendant's answer, the court will decree a specific execution, 257. S, C.
because there is no danger of peijury, which was the principal ^^' ^' ^^^\
thing the statute intended to prevent. ^^^ ^ Tweed '

Pr. Ch. 374. Lacon v. Martins, 5 Atk. 3. Attorney-General v. Day, 1 Ves. 221. S. P. Gunter
V. Halsey, Ambl. 586. Potter v. Potter, 1 Ves. 441. [See Eyre v. Ivison, Scac. Tr. 1 785. cited
2 Bro. Ch.R. 563. Stewart v. Careless, Scac. April 1785, cited Ibid. 564., and Rondeau v.
Wyatt, 2 H. Black. R. 68.] jjBut according to the modern doctrine, if the defendant insist on
the statute, a specific performance will not be enforced, though the agreement is confessed j
for as the defendant cannot protect himself from answering whether there was an agreement
or not, it would be unjust to take the case out of the statute on the ground of his admission.
Cooth V. Jackson, 6 Ves. 39. Rowe v. Teed, 15 Ves. 375. Blagden v. Bradbear, 12 Ves. 471.
Walters v. Morgan, 2 Cox's R. 369. As to whether an agreement confessed will be enforced
if the party do not insist on the statute, see Ex parte Whitbread, 19 Ves. 211. 1 Fonb, on Eq.
180. note (d).ll [If the party himself die, his heir will, it seems, be bound on a bill of revivor.
P^r Lord Hardwicke, 1 Ves. 221. And upon this principle, equity will decree an agreement on
evidence of its having been confessed by a party to it, although it be denied by his answer.
As where an agreement was proved by one witness only, and positively denied by the defend-
ant's answer; but there was proof in the cause that the defendant had confessed the agree-
ment : the Master of the Rolls offered to direct an issue to try the agreement if the defendant
desired it ; but he declined that, unless his honour would make an order that his answer should
be read at the trial, which his honour refused, there being circumstances to corroborate the
evidence of the single v/itness, and decreed the agreement to be carried into execution.
Only V. Walker, 3 Atk. 407- Where the two defendants in a suit confessed an agreement in
their answer, but different from that stated in the bill, and an agreement different from either
was proved by the testimony of only a single witness. Lord Loughborough C decreed a per-
formance pursuant to the terms of the agreement confessed by the answer. Mortimer v.
Orchard, 2 Ves. jun. 243.] ||If the party to an agreement is dead, so that his answer cannot
be had, evidence of his parol confession of the agreement in his lifetime is inadmissible.
Perchard v. Benyon, 1 Cox's R. 214.1| [In what manner, and in what cases the statute may
be pleaded to a bill for the performance of a parol agreement, vide in Whitbread v. Brock-
hurst, 1 Bro. Ch. R. 404. Whitchurch v. Bevis, 2 Bro. Ch.R. 5^9., and the cases there men-
tioned. See also Mitf. Eq. Tr. 217. (3d edit.) Taylor v. Beach, 1 Ves. 297.] pvans v.
Harris, 2 Ves. & B. 361. Morison v. Tumour, 18 Ves. 175. Strickland v. Aldridge,
9 Ves. 516.||

[The plaintiff agreed with the defendant to sell him a house Hawkins v.
for 640/. and by consent of both parties an attorney was employed holmes, i P.
to make a draft of the conveyance : which the attorney accord- '"^' *
ingly prepared and sent to the defendant, who made several
alterations therein with his own hand, and delivered it back to
the attorney to be engrossed; upon which a time was appointed
for the plaintiff and defendant to meet at a tavern to execute the
writings, and for the latter to pay the money. The plaintiff and
his attorney came to the tavern, where the plaintiff executed the
writings, and having gotten the conveyance registered, (the house
being in Middlesex,) brought his bill against the defendant to
compel him to pay the purchase-money. The defendant pleaded
the statute ofjrauds; and it was holden he was not bound, he
not having signed the agreement.

A. agreed by parol with B. for the purchase of lands. B. de- Whaley y.
livered a rent-toll which was dated and altered in his own hand- Bagenal,
writing, and shewed by the title of it that an agreement had been J^^fo-P-^-

made

154 AGREEMENTS.

made between them for the sale of the estate at twenty-one years'
I)urchase. An abstract of the title was also delivered to A. to-
gether with the deeds, in order to be compared with the rent-roll,
B. likewise wrote letters to several of his creditors, informing
them that he had contracted with A. for the sale of his estate at
twenty-one years' purchase, and sent the tenants to treat with A.
for the renewal of their leases. Notwithstanding all these cir-
cumstances, upon A.'s filing a bill for a specific performance, the
plea of the statute ofjrauds was allowed by the House of Lords
both as to the discovery and relief.
2 Bro. Cb. R. If there be general instructions for an agreement consisting of
^^' material circumstances, to be hereafter extended more at large,

and to be put into the form of an instrument with a view to be
signed by the parties, and no fraud, but the party takes advan-
tage of the loais pcenitenticE, he shall not be compelled to perform
such an agreement as that, when he insists upon the statute of
frauds. Per Lord Thurlonso.']
O'Connor V. H-^" agreement for an abatement of rent of land is within the

Spaight, statute, and must be in writing.

1 Scho. & Lcf. 306.

Crosby v. So also a contract for the purchase of a growing crop of grass,

Wadswortb, ^^ |jg mown and made into hay by the vendee, but no time
set! vkle 1 Lord heing fixed for the mowing, is a contract for an interest in land
Raym. 182. within the statute, and is voidable if not in writing, and may be
discharged by a parol notice from the vendor, before any act is
done in part execution of it.
Scorell V. go also the sale of growing underwood, to be cut by the pur-

1 Y & chaser, has been held to convey an interest in land under the
J. 396. fourth section.

Teal V. Auty "^^ ^^^^ ^^ ^^ ^ '^^^^ of growing poles.

2 Brod. & B. 99.; sed vide 9 Barn. & C. 561.

Eramerson v ^ ^^^° ^ ^^^^ °^ growing turnips, no time being fixed for their

Heelis,2Taunt. removal, and their degree of maturity not being stated.
S8. ; and see Waddington v. Bristow, 3 Bos. & P. 452.

Parker v. But where the contract was for a crop of potatoes, to be taken

ii^E^r'sel ^^ ^^^ vendee immediately out of the ground, it was considered
Warwick v. * ^ ^ sale of personal chattels, and not within the fourth section.
Bruce, 2 Maule & S- 205, ; and see Poulter v. Killingbeck, 1 Bos. & P. 397. ; and Evans v.
Roberts, 5 Barn. &C. 836. which seems to over-rule Emraerson v. Heelis; and see Smith v.
Surman, 9 Barn. & C. 561., where a contract for sale of growing timber, at so much per foot,
was held not within the fourth, but within the seventeenth section.

Broc^kiYl ^ licence to enjoy an easement is good without writing, this

8Eajt7308. "°' ^^'"S ^^ interest in land within the statute.

Russell V. ^ deposit of title-deeds, by way of security, is held to consti-

Russell, taX-j an equitable mortgage, though unaccompanied by any

1 Bro. C. R. writing. This decision has been much regretted as letting in

uXh^uYes ^^^°^ evidence as to the terms of the deposit, and leading to

403: Norris*^v! ^^i^cussion on the truth and probability of evidence, which it was

Wilkinson, ^^^^ object of the statute to exclude. But the doctrine is now

i2Ves. 197.; settled.

and see tit. Mortgage, (A). Vol. V.

It has been repeatedly decided (a), that, on a sale of goods by {a) Simon v.
auction, the auctioneer is the agent of both parties, and able to Motives,
bind both within the statute by his signature. j 'Qlack 599 *

Hinde v. Whitehouse, 7 East, 558.; and see 2 Barn. & C. 945.

But the contrary has been decided (b) as to sales by auction of {b) Walker v.
estates in land, though the principle of the distinction is not Constable,
evident; audit has been questioned by several judges. see. Stansfield

V.Johnson, 1 Espin. Ca. 101. Buckmaster v. Harrop, 7 Ves. 341. isVes. 456. Coles
V. Trecothick, 9 Ves. 234.

And in two late cases the Court of Common Pleas held the t-.

p , , 1 p 1 1 Emmerson v.

auctioneer an agent lor the purchaser on a sale or land. Heelis

2 Taunt. 58. White v. Proctor, 4 Taunt. 209.
The latter case was an action against the vendee for the Kemeys v.
auction-duty on the sale, and the vendor afterwards filing a bill Proctor,
for a specific performance of the contract, the Master of the f j **& w"^^*
Rolls, on the authority of the cases in the Common Pleas, held 550.
the auctioneer's signature sufficient to bind the vendee, and de-
creed accordingly. The rule appears, therefore, now to be
settled, that the auctioneer is the lawful agent of both parties on
a sale of land, as well as of goods.

5. Of Agreements not to be performed within the Space of one
Year from the making thereof.

This clause extends only to cases where, by express agree-
ment of the parties, the contract is not to be performed within
one year, and not to agreements depending on a contingency
which may happen either within or beyond the year.

Therefore an agreement to pay the plaintiff so many guineas Anon. Salk
on the day of his marriage, was held not within the statute,
although the marriage did not take effect for nine years ; for it
might have happened within the year, Holt C J., and the
minority of the judges holding contra, on the ground of the
marriage actually happening after the year.

So an agreement to bequeath to the plaintiff an annuity, pay-
able yearly, from the testator's death, was held not within the biers, Execu
statute, in an action brought against the executor, for the testa- to""* ^ Burr,
tor might have bequeathed the annuity by will within the year. r^5%\ and

see Smith v. Westall, Ld. Raym. 316

But where the plaintiffs agreed to publish an expensive work Boydell v.
of art in numbers, one number at least to be published annually, Drummond,
and stated, they were confident they should be enabled to pro- ^ ^^^*' ^1^*
duce two numbers in the course of every year, and the defendant jj^g subscriber
became a subscriber, and the first number was delivered to him in such case
within a year from the date of his subscription, it was held that is not bound,
the case was within the statute, as it appeared to be the clear w^^^^out writ-
understanding of the parties, that the agreement was not to be jj^ue to take
completed within the year ; and the part performance within the in the num-
year, by the delivery of the first numbei*, made no difference, bers, he is
since the word " performed," in the statute, means a complete f""?^ ^"JJ^^
performance or consummation of the work. has accepted.

Mavor v, Pyne, 3 Bing. 285
And

280., recog-
nised by
Wilmut J. in
5 Burr. 1281.;
and see Wells
V. Horton,
4 Bing. 43.

Fenton v. Em-

156

AGREEMENTS.

Braccgirdlev
HeaM, l Barn.
Hi A. 722. See
Williams v.
Jones, 5 Unra.
& C. 108.

Birch V. Earl
Liverpool,
9 Bam. & C.
993.

J 17.

Alexander v.
Comber, 1 H.
Black. R. 20.
Towers V. Os-
borne, I Stra.
596. Clayton
V. Andrews,

4 Burr. 2101.
(o) Rondeau
V. Wyatt,

5 il. Black.
R.63. sBro.
Ch.R. 154.
S.C.

Cooper V.

Elston,

7 Term R. 14.

Garbut v.
Watson,
5 Bam. & A.
614.

Groves v.
Buck, S Maule
&S.178.

Smith T.Sur.

And accordingly, where the defendant verbally agreed, on the
27 JMizy, to take the plaintiiF into his service for a year from the
30th Jwie following, it was decided, that this being a contract
which would not be completely performed within the year, was
within the statute, and void for want of writing.

A contract to hire a carriage for five years, paying an annual
sum for it, and determinable at any time on paying a year's hire,
is a contract not to be performed within a year, and requires
writing.

As to the seventh section, respecting declarations of trust,
which was improperly inserted here in former editions, see tit.
« Trusts," (B) (C) Vol. VIII.||

II 3. Of Agreements mentioned in the Seventeenth Section.\\

By § 17. it is enacted, ** That no contract for the sale of any
*' goods, wares, and merchandize for the price of ten pounds
*' sterling, or upwards, shall be allowed to be good, except the
*' buyer shall accept of p'hrt of thegoods so sold, and actually
*' receive the same, or give something in earnest to bind the
" bargain, or in part of payment ; or that some note or memo-
** randum in writing of the said bargain be made and signed by
** the parties to be charged, or their agents thereunto lawfully
** authorized."

II 1. What Agreements are within the Seventeenth Section, jj

6. As to the clause respecting sales, it has been formerly
thought, that it means only present and immediate sales, and
does not include executory contracts, where goods are bespoken,
and time is given by special agreement for the delivery of them,
and payment of their value. But this construction has been de-
nied in a recent determination of the Court of Common Pleas,
Wilson J. dissent, (a), where an executory contract, merely a
contract of sale, even though confessed by the defendant in his
answer in Chancery, was determined to be within this provision.
To this opinion, it may be added. Lord Thurlow intimated an
incUnation, when the case was before him in Chancery.

IJThe case of iJowrf^aM v. Wyatt has been confirmed by sub-
sequent cases. In one case a sale of wheat by sample, to be de-
livered by the defendant at a different place from the place of
sale, was held to be within the clause of the statute, and the
receipt of the sample by the buyer was held not a sufficient
acceptance, the sample being no part of the wheat sold.

So also a contract for sale of flour not yet ground was held
within the statute ; and was distinguished from the case of Torwers
V. Osborne, supra, since there the chariot ordered would never,
but for the order, have had existence, whereas the flour was sold,
as part of the vendor's general stock.

A contract for a quantity of oak pins to be cut out of slabs
and delivered to the buyer, was held not a sale of goods within
the statute.

But where A., being the owner of trees growing, agreed ver-
bally

bally with D. to Bell him the timber at bo much per foot, it was «"»". ^ \hin.

held an agreement for sale of goods within the section. ^ V* '^^-Vr' .

*= ^ and see Watts

V. Friend, 10 Barn. & C. 446. The case of Groves v. Buck is over-ruled by Garbut v.

Watson, sujmi; see 9 Barn. & C. 561.

But the sale of growing underwood to be cut by the purchaser Scorell v.
has, as we have seen, been held by the Court of Exchequer to |^^^'l>
confer an interest in land within the fourth section. 39g . ^,jj ^^^'

2 Brod! & B. 99.

The circumstance of a buyer agreeing to pay a higher price Astey v.
for goods in consideration of their being delivered at the vendor's ^j^^'^^j' o c
expense, does not make the contract a mixed contract for the 252.
carriage as well as the sale, so as to prevent its coming within
the seventeenth section as a sale of goods.

A contract for the purchase of several articles at the same time, Baldej v.
each under 10/. and at separate prices, but in the whole amount- ^^n'^^'^' <> p
ing to above 10/. is within the seventeenth section. ^^ ^■^^nd see

Price v Lea, 1 Barn. & C. 156.

A contract to procure coals for plaintiff at A., and convey Cobbold v.

them to i?., is not a contract for sale of coals to the plaintiff Gaston, 1 Bing.

• 1-1 R 399

witlim the statute.

2. Of Acceptance of Goods, and part Payment, within the
Seventeenth Section.

Where goods are ponderous, and incapable of being at once chaplin v.
handed over by actual delivery, the statute may be satisfied by Rogers,
that which is tantamount, as the delivery of the key of the ware- ^ East, 192.;
house where they are, or other zw<//cmwofproperty, or the exercising ^ ^^ ''P'"'
acts of ownership over them, as selling a part to another person.

And the offering to sell them by the buyer to a third party, Blenkinsop v.
who refuses to purchase them, is such an act as ought to be left Clayton,
to a jury, to say whether it amounts to an acceptance or not. ' i^ itf/'

S. C. ' "^

Where wine lying in the London Docks was sold without any Bentall v.
written contract, and an order of delivery was given by the ^"^' ^ ^*™*
vendor to the vendee, it was held that the acceptance of this
order by the buyer was not an acceptance of the goods within
the statute, since, till the Dock Company. accepted the order,
they continued to hold the wine for the vendor.

The acceptance of a sample of the goods, if part of the bulk Hinde v.
sold, is a sufficient acceptance within the statute, but not if the Whitchouse,'

sample form no part of the commodity. 7 bast, 558.;

^ ^ •' Cooper V.

Elston, 7 Term R. 14.

Where the defendant contracted to purchase two horses of the Elmore v.
plaintiff, and desired the plaintiff, who was a livery-stable keeper, Stone,
to keep them at livery for the defendant, in consequence of which 1 Taunt. 458.
the plaintiff removed them out of his sale stable into another, it
was held that this was a complete delivery to the defendant.

But where the defendant verbally bought a horse of plaintiff, to Carter y.
remain for twenty days with the plaintiff without any charge, and Toussaint,
no time was fixed for payment of the price, and at the end of the 855!^" '

twenty

158

AGREEMENTS.

Howe V.

Palmer,
3 Barn. & Aid
321.; see
2 Carr. & P
532.

Rohde V.

Thwaites,
C Barn. & C.
388.

Tempest v.
Fitzgerald,
3 Bam. & A.
680. See
Tarling v.
Baxter,
6 Barn. & C.
500.

Hanson v.
Armitage,
5 Barn. & A.
£37. ; ted vide
Hart V.
Sattley,
3 Camp. 523.
Baldey v.
Parker,
2 Bam- & C.
44. ; and see
Thompson v.

Phillips V.

Bistolli,

2 Bara. & C.

SU.

twenty days the defendant ordered the horse to be sent to grass,
but entered as the plaintifs huise, it was held that an action
would not lie for the price, suice there was no sufficient accept-
ance by the defendant.

So where a quantity of tares were purchased by the defend-
ant of the plaintiff, and they were to remain in the plaintiff's
' possession till the defendant fetched them away, the mere cir-
cumstance of the plaintiff's servant measuring them out and
setting them apart in the plaintiff's granary for the defendant, was
held not a sufficient delivery and acceptance within the statute.

But where A. agreed to sell to B. twenty hogsheads of sugar
without any writing, and four hogsheads were delivered to and
accepted by J3., and A. filled up and appropriated sixteen other
hogsheads, and informed B, they were ready, and desired him
to fetch them away, and B. said he would take them as soon as
he could, it was held that the appropriation having been made
by A. and assented to by J5., the property in the sixteen hogs-
heads passed to the latter.

So where the defendant, while on a visit to plaintiff, agreed to
purchase a horse for ready money, and to fetch it away about
the 22d of Septembery and the defendant went away, and re-
turned on the 20th of September, and then rode the horse, and
gave directions as to its treatment, and requested it might remain
another week in plaintiff's possession, and said he would return
and pay for it about the 26th or 27th of September, and the
defendant returned on the 27th to take the horse away, but
in the mean time it had died, and the defendant refused to
pay the price ; it was held that there was no acceptance of the
horse within the statute of frauds, for the sale being for ready
money, the defendant had no right to take away the horse till
tlie price was paid, and therefore his acts on the 20th September
could not be considered as acts of ownership.

An acceptance of the goods by a wharfinger, in order to con-
vey them to the buyer, is not an acceptance by the buyer within
the statute ; for the acceptance must be such as precludes the
buyer from afterwards making any objection to the quantum or
quality of the goods.

As long as the lien of the vendor remams, the possession of
the goods is not so transferred to the vendee as to amount to
an acceptance of them within the statute.
Maceroni, 3 Bara. & C. 1. Mayfield v. Wadsley, Ibid. 557.

In order to satisfy the statute, there must be a delivery of the
goods by the vendor with an intention of vesting the possession
in the vendee, and an actual acceptance by the latter with in-
tention of taking the possession as owner. Therefore, where
jewels were knocked down by the plaintiff to the defendant at an
auction, at which the conditions were, that the purchaser should
pay thirty per cent, upon being declared the highest bidder, and
the residue of the price on removal of the goods, and the de-
fendant received the jewels on their being knocked down, and

three

three or four minutes afterwards objected that he had mistaken
the price, when the plaintiff refused to receive them again, it was
held, that as it could not be presumed that the vendor intended,
contrary to the conditions, to part with the goods without the
deposit or price being paid, there was very slight evidence to
shew that the plaintiff intended to part with the control over the
goods when he delivered them, and that the receiving the jewels
for a few minutes before making his objection was very slight
evidence of an acceptance by the vendee, and that it was a
question for the jury whether there was a delivery and accept-
ance intended by both parties to transfer the possession.

If the purchaser of goods draw a shilling over the hand of the Blenkinsop v.
vendor, and return the money into his own pocket, which is Clayton,
called in the north of England striking of a bargain, this is not '^ Taunt. 597.
a part payment within the statute.

3. Of the Memorandum in Writing, and the signing by the
Party to be charged, or his Agent

The language of the seventeenth section differs from that of Egerton v.
the fourth, inasmuch as in the latter the " agreemenf*^ is required Matthews,;
to be in writing, in the former, only a " note or memorandum in ^ ^^'' ^^ '^
writing of the bargain " is required. Therefore, where an action
was brought for not accepting goods according to the following
memorandum — "We agree to give Mr. Egerton \^d. per lb. for
30 bales of Smyrna cotton, customary allowance, cash 3 per cent.
Matthe*iSos and Turnbidl" it was objected that no consideration
appeared for the defendant's undertaking, and that there was no
mutuality in the agreement ; but the Court distinguished this
from the cases on the fourth section, and held that there was a
sufficient memorandum of the bargain to bind the parties to be
charged and that their signatures were all that the statute re-
quired.

In the above case the name of the seller appeared in the me- champion v.
morandum, although the purchasers only signed it. But where Phimmer,
the seller alone siimed a memorandum of the bargain, and the i New R. 252^
buyer's name did not appear on it, it was held insufficient ; since *^" J'*"^ ^"^"
there cannot be a contract without two parties, and the memo- 5 Xaunt. 167.
randum would prove a sale to any other party as well as to the
buyer.

The memorandum may be made up of two separate writ- Saunderson v.
ings, if they refer one to the other. Thus, in an action for Jackson,
not delivering gin bought of the defendants, it appeared that 2 Bos. & PulT,
at the time the order was given by the plaintiff a bill of ^^^*
parcels was delivered to him by the defendants, headed in print
thus: " Bought of Jacit^on 2iX\d. Hawkins, distillers;" and then ,

followed, in writing, " 1000 gallons of gin, 1 in 5 gin, 7^., 350/.;"
and the name of the buyer appeared on the bill of parcels.
About a month after, the defendants also wrote the following
letter to the plaintiff: — " Sir, we wish to know what time we
" shall send your order, and shall be obliged for a little time in
" delivering of the remainder. Must request you to return our
" pipes. Yours, &c Jcckson and Hawkins.^^ It was holden

that

160

AGREEMENTS.

Jackson v.
Lowe, 1 Bing.
R.9.

Cooper V.
Smith, 15 East
103.; and see
Boydell V.
Drummond,
II East, 142.
Richards v.
Porter, 6 Barn.
& C. 437.

1 Espin. 190.
perEi/reC.J.;
see Selby v.
Sclby,3Meriv.

k.2.

Saunderson v.

Jackson,

S Bos. & Pull.

238.

Schneider v.

^lorris,

12 Maule & S.

S86.

Smon T. Me-
tivier, 1 Black.
B.5d9.

that by connecting the bill of parcels with the subsequent letter
of the defendants, the requisites of the statute were made out.

So, in an action for not delivering flour according to con-
tract, it appeared that the plaintiff had sent a written notice
to the defendant that certain flour delivered by the defendant to
the plaintiff (" in part performance of the plaintiffs contract
" with him for 100 sacks or bags of good English seconds
" flour, at 45s. per sack or bag,") was so bad that the plaintiff
would not accept it, and that he held the defendant answerable,
and expected him to fulfil the contract above alluded to in the
course of a week; and the defendant's attorney's clerk, by
direction of the defendant returned an answer, stating that de-
fendant considered he had performed his contract with the
plaintiff as far as it had gone, and w^as ready to perform the
remainder; it was held, that as the plaintifTs notice stated the
terms of the contract, and the defendant's letter clearly referred
to the same contract, the two papers together made a sufficient
memorandum within the statute.

But where in an action for goods sold and delivered, the
plaintiff offered in evidence an entry of the order for the goods,
made in an order-book of the plaintifTs rider, which purported
to be a mere general order of forty sacks of flour at 58s. per
sack, and this order being insufficient as a memorandum for
want of signature, the plaintiff endeavoured to satisfy the statute
by connecting the order with a letter of the defendant, stating,
that as the plaintiff had not sent the flour, the defendant was
provided, and that he had expected to receive it in a vceek, it was
held, that the letter of the defendant appeared to refer to a dif-
ferent contract, and could not be connected with the order, so as
to form a memorandum within the statute.

The place of signature of the memorandum is immaterial. If
a person draw up an agreement in his own hand-writing, be-
ginning, " I A. B. agree, 8^c" and leave a place for signature at
the bottom, but does not sign it, the agreement will be con-
sidered as sufficiently signed.

So it seems if a person be in the habit of printing instead of
writing his name, he may be said to sign by his printed as well
as by his written name.

And where the name of the seller was printed in the common
way on the bill of parcels, and he had written in the bill the
name of the buyer, that was held to be a recognition of the
contract and adoption of the printed name, so as to satisfy the
statute.

Tlie question whether sales of goods by auction were within
the seventeenth section was long without a solemn determi-
nation. In one case Lord Mansfield C. J. and Wilmot J. were
inclined to the negative, on the* ground that the solemnity
of that kind of sale, and the number of persons present, pre-
cluded perjury as to the. fact of sale. But Lord Ellenhorough,
in Hinde v. Wliitehouse, 7 East, 568., observed, that with all
deference to these opinions he did not feel any sufficient reason
for dispensing with the express requisition of the statute apply-
ing

ing to all sales of goods above the value of 10/. without exception, Kenworthy v.

merely because the quantum of parol evidence in case of an Schofield,

auction is likely to render the danger of perjury less consider- L/"^"'
able ; and in a late case the Court of King's Bench {Abbott C. J.
and Littledale J. being absent,) expressly decided that such
sales are within the seventeenth section. We have already
seen (p. 155), that the auctioneer is the agent of both parties,
and a memorandum made by him of the bargain binds both
the seller and buyer.

But the terms of the contract must sufficiently appear on the Hinde v.

Face of the memorandum, signed by the auctioneer. Therefore, Whitehouse,

where at a sale by auction of sugars, the auctioneer (having Kenwo'rthvV

before him the printed catalogue of sale, containing the lots, Schofield,

marks, and number of hogsheads, and the gross weight of the 2 Barn. & C.

sugars, and also another paper containing the conditions of sale, pf^"?' i ^"* ^^^

which latter he read to the bidders as the terms on which the Barry"i°Camp

sugars were sold, but the two papers were neither externally 513. 'The

annexed nor contained any internal reference to each other,) note in writing

wrote down on the catalogue the name of the highest bidder, "^"^^ ^t'^^^ the

and the sum bid for each lot, it was holden that the minute on goodsln oi^er

the catalogue (the catalogue not being incorporated with the to satisfy the

conditions of sale) was not a sufficient memorandum of a bargain statute.

under those conditions. ^ ^*'^* ^ %•

545.

If the action is brought in the auctioneer's own name for not Farebrother

accepting goods knocked down at an auction, the statute will not v. Simmons,

be satisfied by the signature of the auctioneer as agent for the ^ Barn. & A.

buyer ; for the agent signing must be a third party, and not the ''"'t "■ 'r^y"^'^
^u ^ .. .1- X '^ . xu J V. Lmthorne,

Other party to the contract on the record. 1 \^y & Moo.

325. Wright V. Dannah, 2 Camp. R. 203.; and see 1 Moo. & Malk. 125.

In sales made by brokers acting between tlie parties buying Kucker v.

and selling, the memorandum in the broker's book, and the Cammeycr,

bought and sold notes transcribed therefrom, and signed by the Hinde v.*

broker, and delivered to the buyer and seller respectively, are Whitehouse,

held a sufficient compliance with the statute to render the con- 7 East, 569.

tract binding on each party. f'^f ^°^^,^^

'^ ^ •' lenborough.

It was laid down by Lord Ellenboroiigh C. J., that the entry j-je„^ ^
signed by the broker is alone the binding contract, and that the Neale,2Ca'mp.
bought and sold notes transcribed from it are only sent to the 357. Gumming
parties for their information. But in another case, where the T: Roebuck,
bought and sold notes diffi=red in terms, Gibbs C.J. denied this Thornton \^*
doctrine, and held that the parties were bound by the notes Kempster,
delivered by the broker, and if they differed there was no valid 5 Taunt, vsg.
contract ; and the Courts of Common Pleas and King's Bench ^"^ ,^^^ f^^^^
in similar cases decided accordingly. 5 B.lrn &'^C

436. In Gumming v. Roebuck, and Thornton v. Kempster, it did not appear whether there
was any entry signed by the broker in his book. Qu. whether such an entry signed will make
a binding contract where the bought and sold notes differ? It is clear an unsigned entry will
not. Grant v. Fletcher, supra.

So, if a material alteration is made in the note by the broker Powell v. Di-
at the instance of one party, without the assent of the other, )^^"' 1 5 East,
it annuls the instrument. ''^^'

Vol. I. M In

16« AGREEMENTS.

Dickenson ?. In a late Nisi Prius case, the question arose whether the bought
Lilwall, and sold notes alone would constitute a contract, without any entry

1 Surk, 128. Q^ all j„ ti,g broker's book ; but it was not necessary to decide it.
Goomv. But it has lately been held, that where the broker makes an

Aflalo, 6 Bam. entry in his book but does not sign it, and sends bought and
* ^"c *•';, ^'^ sold notes, copied from the book and signed by him, to the parties,
Sparrow, 2C. ^hey form a sufficient memorandum.||

& P. 544. If the broker's clerk sign the book it will not be sufficient; for the broker cannot
delegate his authority. Henderson v. Barnwall, 1 Young & J. 587 ; see Blore v. Sutton,
3 Meriv. 237. Though the agent signing the contract has no authority from his principal at
the time of signing, it will be sufficient if the principal afterwards ratifies the contract.
Maclean v. Dunn, 4 Bing. 722.

(D) Of Cases where Equity decrees specific Perform-
ance of Agreements on the Ground of their
being in Part performed.

There are several cases in which it has been holden, that a
parol agreement in part executed shall be performed in the whole ;
but as those cases are not exactly stated or well reported, it will
be sufficient to mention what seems to be the sense of them, and
what with any justness can be collected from them. If an agree-
Leek v. Mor- nient be made concerning lands, though not in writing, and the
rice, 2 Ch. Ca. party by whom it was made receive all or part of the money,
135. Alsop V. equity will compel a specific performance of the whole agree-
i^atten, 1 Vern. jjjgjjj-. because this is out of the statute, which designed to defeat
H. C. 239. such agreements only, no part whereof was carried into exe-
cution, and set up merely by parol ; for that was the occasion of
the statute, that persons used to swear verbal agreements upon
others, and by such false oaths charge the parties in equity to
perform such agreements, though they had never been made ; and
therefore the mere parol proof of such agreements concerning
lands cannot be admitted in a court of equity : but where the
Bamett v. price is paid, there it doth not stand upon the parol proof of the
Gomeserra, agreement only, but upon the execution of part of the agreement,
sled V. Cole- ' ^^^'<^'' is evidence that the agreement was really made ; and diere-
man,Bunb.65. fore there is the same reason that the plaintiff in equity should
[{a) In Lacon have the land for his money (a), as it is that he should deliver the
3 Atk"4°*'Ld S^ods where he hath received the money ; but the doubt in these
Hardwicke ' ^^ses is, what shall be a proof of the receipt of the money,
said, that pay- Thus far it seems certain, that if the defendant in his answer
mcnt had al- confess the receipt of the money for that purpose in the bill, or if
holden*^a")art ^^ ^^"^ ^^® receipt, and it be proved upon him by writing, as

Krformance. ^y letter under his hand, or other written evidence, he shall be
It it seems obliged specifically to perform the whole agreement, because he
that it is not hath carried part into execution : but if the defendant confess the
S lands! *St ^^^p'P.^ of the money, but say that he borrowed it from the
eooile v! plaintiff, and that he had it not in execution of that agreement,

Mealc, Pr.Ch. there he turns the proof of the agreement upon the plaintiff,
560. Lord and then the plaintiff must prove the receipt of the money by
R^2En ^^^ defendant, for the purpose in the bill, by some written
Ca. Abr. 46. agreement. (6)

pi 12. Simmons V. Cornelius, 1 Ch. Rep. 128. But sec VoU v. Smith, 5 Ch. Rep. 16. Anon.
2 Freem. 128.] ^Xn dinan y. Cooke, 1 Scho. & Lef. 22. Lord Redesdale decided that, pay-
ment

(D) Part Performance in Equity. 16S

ment of purchase-money was not a part performance, since the statute having expressly
declared that it shall be so in case of goods, must have meant to exclude it in case of lands;
and see O'Herliliy v. Hedges, Ibid. 125. and 4 Ves. 720. 14 Ves.jun. 588. ace. and the cases on
the subject stated in Sugd. Vend. & P. (6th edit.) 104. ; nor is payment of auction duty on
a sale a part performance. Buckmaster v Harrop, 13 Ves. 456. and on a parol agreement for
division of an estate by arbitration, acts done by the arbitrators as surveying, &c. are not a
part performance. Cooth v. Jackson, 6 Ves. 4I.|1 [Acts done in part performance, must be
such as could be done with no other view or design than to perform the agreement, and not
such as are merely introductory or ancillary to it. Ex j)arte Hooper, 19 Ves. 479.
I Meriv. 7. They must be such, too, as would be a prejudice to the party who has
done them, if the agreement should afterwards be vacated ; and where no fraud is alleged,
it seems, that the terms of the agreement must be certainly proved. Gunter v. Halsey,
Ambl. 586. W^hitbread v. Brockhurst, 1 Bro. Ch. R. 412. The giving of possession is
to be considered as an act of part performance. Butcher v. Stepeley, 1 Vern. 363. Pyke
v. Williams, 2 Vern. 455. Lockey v. Lockey, Pr. Ch. 519. Lacon v. Mertins, sAtk. 4.
Floyd V. Buckland, 2 Freem. 268. Stewart v. Denton, Fonbl. Notes on Eq.Tr, 38.] Wills
V. Stradling, 3 Ves. jun. 578. Bowes v. Cator, 4 Ves. jun. 71. Gregory v. Mighell, 18 Ves.
jun. 328. Kine v. Balfe, 2 Ball & B. 343. Morphettv. Jones, 1 Swanst. 172. ;11 [but possession
wrongfully obtained, or from persons not competent to give it, of however long continuance,
will not avail. Hole v. White, cited in 1 Bro. Ch. R. 409. Ireland v. Rittlc, 1 Atk. 541.]
II And it must be a possession delivered in part performance; therefore, the mere continuing in
possession of a tenant cannot weigh with the court on a bill by the tenant for specific per-
formance of a parol agreement for a new lease. Wills v. Stradling, sVes. 382. ; and see
1 Ball & B. 282.; and the mere payment of additional rent by the tenant is an equivocal act,
unless it appear that the landlord accepted it on the ground of the agreement, ibid. ; and the
laying out money in rebuilding a party-wall by a tenant does not take an agreement out of
the statute, since it must be done independently of the agreement, either at the expense of
the party or his landlord. Frame v. Dawson, 14 Ves. 386,; and see Lindsay v. Lynch, 2 Scho,
& Lef 1. O'Reilly v. Thompson, 2 Cox. 271. |1 [The giving directions for conveyances, and
going to view the estate, are not considered as acts of part performance. Clerk v. Wright,
I Atk. 12. Whaley v. Bagenal, 6 Bro. P. C. 45. Hole v. White, suprh. Nor will desisting
from a jjurchase of lands in favour of another, upon certain terms, take an agreement in favoui
of the party desisting, as to part of the lands, out of the statute. Lames v. Bayley, 2 Vern.
627. ; and see Vin. Abr. tit. Contract, &c. (H) pi. 32. 2 Eq. Ca. Abr. 45. 10. which seem to be
the same case.] {b) For a parol evidence, as to the receipt of the money, seems to be as
much excluded by the statute, as parol evidence relating to the agreement ; tamen queere.
Whether parol evidence may not properly be applied to the act of receiving; though not to
the act of contracting. See 1 Pow. on Contracts, 306, 507, 308.

If a man, on a promise of a lease to be made to him, lays out Pr. Ch. 561.
money on improvements, he shall oblige the lessor afterwards to So lessee
execute the lease, beinff executed on the part of the lessee, and <'""sed where

■' o 1 ' nosspsscQ SIX

the lessor shall not be allowed to take advantage of his own fraud, years. 2 Stra.
and run away with the improvements made by another ; but if 785. Earl of
no such expense had been on the lessee's part, a bare promise of Aylesford's
a lease, though accompanied with possession, would be within ^^.?; ''e^® ,
the statute of frauds. ling^ 3 Ves.

332. and Frame v. Dawson, 14 Ves. 386. Toole v. Medlicott, 1 Ball & B. 401.||

One that could read made an agreement for a lease of twenty- Skin. 159. pie.
one years ; the lessor himself drew the lease but for one year, and Anon. [That a
yet read it for twenty-one years, and after the expiration of the ^^^^^ '" *
year ejected the lessee ; on a bill brought to be relieved upon this ^lent cannot
matter, which was proved, the court held it to be within the be supplied,
statute of frauds and perjuries, and dismissed the bill with costs, see Binsted v.
it being the plaintiff's own folly, being able to read ; seciiSi if he ^^JfiJ^g"' ^^^^
had been unlettered. on the ground

of fraud or mistake it may. Joynes v. Stathani, 3 Atk. 388.]

If a man purchases lands in another's name, and pays the 2 Vent. 36 1.
money, it will be a trust for him that paid the money, though g^p'^^ho^e it

M 2 there

Ifii AGREEMENTS.

« said that the there be no deed executed declaring the trust thereof; for the

proof must be statute of frauds and perjuries extends not to trusts raised by

very clear that operation of law.

he paid the '

purchase money ; but for this vide head of Evidence, and Trusts,

Hales V. Van- [Although parol agreements are bound by the statute, and
herchem, agreements are not to be part parol and part in writing, yet a

KuSlv Riis- deposit or collateral security for the performance of a written
sell, Bro. Ch. agreement, is not witliin the purview of the statute.]

K. 269.

Abr. Eq. 20. Where a parol agreement was concerning the lending of

pi. 5. 2Frecm. money on a mortgage, and the conveyance proposed was an ab-
Skfn^fis solute deed from the mortgagor, and a deed of defeasance from

5 Atit. 389. the mortgagee, and after the mortgagee had got the deed of con-
s Wooddes. veyance he refused to execute the defeasance, yet it was decreed

■429. [Where a gnrainst him on the point of fraud.

man, m conn- «=• *

dence of a parol promise, has omitted making that provision for others which he intended, such

promise has been enforced in equity on the ground of fraud. Davenish v. Baines, Pr. Ch. 3.

2 Eq. Ca, Abr. 43. S. C. Sellock v. Harris, Vin. Abr. tit. Contract and Agreement (H), p. 31.

Reech v. Kennigate, Ambl. 67. Harris v. Horwell, Gilb. Eq. R. 1 1.]

ALIENS.

(A) Who are Aliens, and this either by the Common

Law, or by Statute.

(B) Of Naturalization and Denization, the Difference

and Effect of them.

our Law.

[(C 2.) How far the Laws of this Country attach
upon Aliens.]

(D) What Actions Aliens may maintain ; and therein

of the Difference between an Alien Friend
and one whose King is at enmity with us.

(E) Of Pleading Alienage.

(A) Who are Aliens, and this either by the Common
Law, or by Statute.

7 Co. 18. a. _^LL those are natural-bom subjects whose parents, at the time
^setW of their birth, were under the actual obedience of our king^

who'were bom ^^ "^^osQ place of birth was within his dominions.
in Normandy, Gascoigne, &c. while under actual obedience to the kings o^ England, were subject.

bord.

(A) ff7io are Aliens by Common Lctw or Statute. 165

born. 7 Co. 20. b. Vaugh. 270. S. P. And this by the statute 42 Ed. 3. c. 10. is declared to
have been the common law; but see Bro. Denizen, 14., but those born there now are aliens,
those places not being in the actual possession of our king. 7 Co. 18. a.

If one of the king's ambassadors in a foreign country hath 7 Co. is. a.
issue there by his wife, being an English woman, by the common
law they are natural-born subjects.

If the king of England make a new conquest, the persons Dyer, 224.
there born are his subjects; but if it be taken from him again, Vaugh. 28 1»
the persons there born afterwards are aliens.

One born in Ireland, Scotland (a), or ^a/^s, or any of the Vaugh. 279.
king's plantations, is a natural subject oi England^ because he is ^°'^ '^ ^' n
born within the ligeance of the king. bT 3^ c 9 %I

(a) The Antenati, or those born in Scotland before the descent of the English crown to king
James I. are aliens ; for the uniting the kingdoms by a subsequent descent cannot make them
subjects of that crown to which they were born aliens ; but the post?iati, or such as were born
after, are not aliens ; for being born within the allegiance, and under the protection of the king
o^ England, they are his natural subjects, and not aliens. 7 Co. 1 — 28. Calvin's case adjudged,
with the reasons at large.

If aliens come as enemies into the realm, and possess themselves 7 Co. is. a.
of a town or fort, and one of them has issue born here, this issue
is an alien ; for it is not calum or soliim that makes a subject, but
the being born within the allegiance, and under the protection of
the king.

If the king o^ England enter with his army in a hostile man- Vaugh. 231,
ner the territories of another prince, and any be born within the
places possessed by the king's army, and consequently within his
protection, such person is a subject born to the king of England^
if from parents subjects, and not hostile.

Those born on the English seas are not aliens. Molloy, b. 5.

c. 2. § 9.

By a statute 25 Ed. 3. de natis idtra mare, it is declared, " that 25 E. 5. Bt. 3.
*' the king's children, wherever born, ought to inherit: and that
*' all children in heritors, which from henceforth shall be born
*' without the ligeance of the king, wiiose fathers and mothers,
** at the time of their birth be and shall be of the faith and allegi-
** ance of the king of England, shall have and enjoy the same
** benefits and advantages to have and bear the inheritance within
*' the same ligeance as other inheritors aforesaid, in time to
*' come, so always that the mothers of such children do pass the
" sea by the licence and wills of their husbands."

If an E?igltsh merchant goes beyond sea, and takes an alien Qr^ q^^ gQl
wife, the issue shall inherit him ; so it is if an English woman ^02. Bacon v.
goes beyond sea and takes an alien husband, the children there Bacon, ad-
born shall inherit her; for thoujih the statute be in the coniunc- J"^sed. Lit.

• \« ^« .Iv 22 24 S I

tive (b), yet it hath been construed in the disjunctive to hinder sjj^ 193. s.c'
this disability ; and the word and taken instead of or, as some- cited. Vent,
times it is, it being not reasonable that the child shoukl not ^.-7. S. C.

inherit the parent that is of ability, for the defect of the other *^'^^^,' f'"' ''
♦k„«. : ^ 4. was holden,

t^^t^^no;- . that if baron

and feme English go beyond sea witliout licence, or stay there beyond the time limited by the
licence, and have issue, such issue is an alien, and not inheritable. Cro. Eliz. 5. Hyde v.
Hill ; tnmcn quarc, ct vide Lit. R. 27., and Bro. tit. Denizen, G.; and see infra, [{b) But qu.
Whether the cases referred to warrant this construction; and sec the case of Doe ex dem.

M 3 Count

166

ALIENS.

of tl>c '25 E.
Dyer, 2124 in

Count Durouie v. Jones, where it was determined that the son of an alien father, of an En-
glish mother bom out of the king's dominions, cannot inherit an estate in right of hia mother.
ITic juJement of the court went upon the statutes of 4G.2. c. 21. and 15 G. 5. c. 21., which
confine the privilege to the paternal heirs, and were conceived to be parliamentary expositions
4 Term R. 300.]

Husband and wife dwelling in Calais, when it was taken by the
Fretichy fled into Flariders, where the wife was delivered of a
son; the issue adjudged a denizen, because his parents were
born in Calais, then reckoned part of the king's dominions, and
because he himself was begotten there, though to avoid the rage
of enemies born in another prince's territories.

By the 7 Ann. c. 5. § 3. it is enacted, " that the children of
" all natural-born subjects, born out of the ligeance of her Ma-
" jesty, her heirs and successors, shall be deemed, judged and
" taken to be natural-born subjects of this kingdom, to all intents,
" constructions, and purposes whatsoever.

By the 4 G. 2. c. 21. the above clause is confirmed (a)
with the following proviso, " that it shall not extend to any
" children, so as to make them natural-born subjects of Great
" Britain, whose fathers, at the time of the birth of such chil-
" dren respectively, were or; shall be attainted of high treason, by
" judgment, outlawry, or otherwise, either in this kingdom or in
" Ireland, or whose fathers at the time of the birth of such chil-
" dren respectively, by any law or law s made in this kingdom,
" or in Ireland, were or shall be liable to the penalties of high
" treason or felony, in case of their returning into this kingdom
" or into Ireland, without the licence of his majesty, his heirs
" or successors, or any of his majesty's royal predecessors, or
" whose fathers, at the time of the birth of such children re-
" spectively, were or shall be in the actual service of any foreign
" prince or state, then in enmity with the crown of England ;
" but that all such children are, were, and shall be and remain
" in the same state, plight, and condition, to all intents, con-
" structions, and purposes whatsoever, as they would have been
" in if the said act of the seventh year of her said late majesty's
" reign, or this present act, had never been made ; but out of
" this proviso are excepted (other than the children of such per-
" sons who went out of Ireland in pursuance of the articles
" oi Limerick) the child of every such person before described,
" who, at any time between the 16th day of November 1708,
" and the 25th day oi March 1731, hath come into Great Bri-
" tain or Ireland, &c., and hath continued to reside in any of
" those places for the space of two years, and during such re-
" sidence hath professed the protestant religion ; also every child
" whose father came into Great Britain or Ireland, &c. and pro-
" fessed the protestant religion, and died there between the
" times aforesaid ; also every child whose father continued in
the actual possession or receipt of the rents and profits of any
lands, S)C. for the space of one whole year, at any time be-
tween the aforesaid times, or hath bmajde, and for valuable
" consideration, sold, conveyed, or settled any lands. SfC. in

« Great

7 Ann. c. 5.

4G.2. C.23.
[(a) The con-
firmatory
clause here
alhuied to,
differs from
the statute of
Ann. in this
respect, that it
restricts tiie
privilege to
the paternal
line. The
words are,
" That all
children born
out of the
ligeance, &c.
whose/<////tT
shall be natu-
ral-bom sub-
jects, &c."]
Ijlf the
lather has lost
his character
of natural-
born subject
before the
birth of the
child, the child
is an alien.
Doe dem.
Thomas v.
Acklam ,
2 Bara. & C.
779.; and see
pottf 168.||

(A) Pfho are Aliens by Common La'w or SUttute, Id?

'* Great Britain or Ireland ,• and any person claiming title there-
*' to under such sale, ^c. who hath been or continued in the
** actual possession or receipt of the rents and profits thereof,
*' for the space of six months, between the times aforesaid,
** tlien, Sj-c.

[By the 13 G. 3. c. 21. the provisions of the above acts are isQ.s. c.2i.
extended to grand-children, still however adhering to the pater-
nal line, with provisoes that nothing in that act " shall be con-
** strued to affect any of the limitations or restrictions of the act
" of 4 G. 2. c. 21. or to repeal or alter the act of 5 G. 1. c. 27.
*' hereafter mentioned ; or to repeal or alter any law or custom
** concerning aliens' duties, customs, and impositions, or to cause
" any privilege, exemption, or abatement relating thereto, in
*' favour of any person naturalized by virtue of that act, unless
*' such person shall come into this realm, and there inhabit and
** reside, and shall take and subscribe the oaths, and make, re-
*' peat, and subscribe the declaration appointed by the act of
** 1 G. 1. c. 13., entitled an act for the further security, 4"^. at
** the places and times, and in the manner directed by that act,
** and also receive the sacrament of the Lord's Supper according
" to the usage of the church of England, or in some protestant
*' or reformed congregation within the kingdom of Great Britain,
" within three months before his taking the oaths in the said
** act mentioned, and shall, at the time and place of taking such
** oaths, and of making, repeating, and subscribing the said de-
** claration, produce a certificate signed by the person administer-
** ing the said sacrament, and signed by two credible witnesses,
** whereof an entry shall be made of record in the court and
** courts respectively wherein such oaths shall have been made
*' and subscribed, without any fee or reward. And it is further
*' provided, that no person shall be by this act enabled to defeat
** any estate, right, or interest, which on the last day of that ses-
** sion should be had or vested in any other person, or to claim or
" demand any estate or interest which shall hereafter accrue, so
** as such claim or demand shall be made within five years after
** the same shall accrue."

By Stat. 14? & 15 H. 8. c. 4. it is enacted, that if an English 14 & 15H. 8.
subject go beyond the seas, and there become a sworn subject to c* *.
any foreign prince or state, he shall, during his residence abroad,
pay such impositions as aliens do : with a proviso, that if he re-
turns, and lives here, he shall be restored to his liberties and
privileges.]

By the 5 G. 1. c. 27. it is enacted, " that if any manu- sG. i. c.27.
** facturer or artificer of or in wool, iron, steel, brass, or any
*' other metal, clockmaker, watchmaker, or any other artificer
** or manufacturer of Great Britain, shall at any time after the
*' first day of May 1719, go into any country out of his ma-
** jesty's dominions, there to use or exercise, or teach any of the
*' said trades or manufactures to foreigners: or in case any of
" his majesty's subjects now being, or who hereafter shall be in

M 4 «* any

168

ALIENS.

Fost.Cr.L. 59.
Dyer, 29a. b.
500. b.

1 Wooddcs.
382.

Doe dem.
Thomas v.
Acklam,
2 Barn. & C.
779.

" any such foreign country out of his majesty's dominions a>
" aforesaid, and there using or exercising any of the said trades-
" or manufactories herein-before mentioned, shall not return
" hito this realm within six months next after warning shall be
" given to him by the ambassador, envoy, resident, minister, ok
" consul of the crown of Great Britain, in the country in which
" such artificer shall be, or by any person authorized by such
" ambassador, ^c. or by one of his majesty's secretaries of state
" for the time being, and from thenceforth continually inhabit
" and dwell within this realm ; then and in such case every
** such person shall be deemed an alien."

[It should here be observed, that the duty of allegiance arising
from birth is perpetual and unalienable, and that it is not in the
power of any private subject to shake off his allegiance, and

transfer it to a foreign prince ; nor is it in the power of any
foreign prince by naturalizing or employing a subject of Great
Britain, to dissolve the bond of allegiance between that subject
and the crown. But when, by treaty, especially if ratified by
act of parliament, our sovereign cedes any island or region to
another state, the inhabitants of such ceded territory, though
born under the allegiance of our king, or being under his pro-
tection whilst it appertained to his crown and authority, becoma
effectually aliens, or liable to the disabilities of alienage, in re-
spect of their future concerns with this country. And similar to
this seems the condition of the revolted Americans, since the
recognition of their independent commonwealths.]

II This question has now been decided. The case was an action
of ejectment, to recover premises at Kingsto7i-tij)on-Hnll, which
came on to be tried before Abbott C. J. at the York summer
assizes 1822. The jury found a special verdict, stating that
Elizabeth Harrison died seised of the premises in 1813, without
a will, and never having been married, and that Frances Mai-y
(one of the lessors of the plaintiff), the wife of Philip Thomas,
was her next heir, if she was capable of inheriting. Peter Har-
rison, the uncle of Eliz. Harrison, and the grandfather o{ Frances
Mary Thomas, being a natural-born British subject, went to the
British colonies in North America, and died there in 1775, leaving
several children who all died without issue in the life of Elizabeth
Harrison, except one daughter, Elizabeth Harrison, who in 1781
married at Rfiode Island, one of the British Colonies, James
Eudlow, a native subject, born in the American Colonies. Eliz.
Ludlcnx) died in America in 1790, leaving the lessor Frances
Mary her only child, she having been born at Rhode Island, in
the United States, on the 4th Febniary 1784, after the recognition
of the independence of the United States by the British crown,
which recognition took place on the 3d September- 1783. James
Ludlffw and Elizabeth his wife continued to reside in America
after the recognition of independence. For the plaintiff it
was contended, that the parents of Frances Mary Thomas,
having been natural-born subjects of the British crown at the

time

(B) Of Naturdlization and Denization. 169

time of the separation of the colonies, did not cease to be so
by that event, and that the lessor Frances Maty Thomas was
therefore the child of a natural-born subject, and as such entitled
to be considered a natural-born subject of the crown of Great
Britain within the meaning of the statutes 25 Edw. S. stat. 2
7 Ann. c. 5. ^S.^ Geo. 2. c. 21. But the court held, that under ,. ^^ . ,
the words of this last statute, a child was not to be considered a Lessee v.
natural-born subject, unless the father were at the time of the Rochester,
birth a subject; and that as Mr. Ludlow had lost the character 7 Wheaton's
of a subject of Great Britaiti at the separation of the colonies from CaseTin^he
the mother country, his daughter born after that event was an Supreme
alien, and incapable of inheriting, and judgment was accordingly Court of the
given for the defendant. (In a casein the supreme court of the United States.
United States, it had previously been determined that natives of
Great Britain were aliens, and incapable of inheriting lands in
the United States, {a)

But, in a subsequent case, where the parents were natural-born Auchmuty v.
British subjects residing in America before the recognition of the Mulcaster,
independence of that country, and on that event adhered to the t^f^'
British government, (by embarking with the British troops when
they evacuated New York, and residing in England for two years,
and by the father going to America under an appointment from
the British government), it was held, that their children born
after the recognition were capable of inheriting lands in this
country. Bayley J. said, — There is a very plain distinction be-
tween this case and that of Doe v. Acklam. In that case it appeared
that the parent, through whom the claim was made, put off his
allegiance at the time of the treaty, which enabled him to do so;
here the parent took no such step at that time, and the law did
not enable him to do so at any future time. ||

(B) Of Naturalization and Denization, the Difference
and Effect of them.

A LIEN born may become a subject of England two ways, by i Inst, 8. a.

denization and by naturahzation : denization is by the king's ^^^' ^- Pal>".

letters patent ; it receives him into the society as a new man, and "^'i ^?"'''^y
11-11 1 1 • / \ 1 1 1 a"" Uixon.

makes him capable to purchase and to transmit [a) lands by Cro. Jac. 539.

descent, but not inheritable to any other relation ; for though the (a) His

king by his charter may admit him into the society, yet he can- children born

not alter the law, which denied him to inherit any relations : but jgj^[ ^^^

if he be naturalized by act of parliament, then he in all things shall inherit

inherits like a natural-born subject, because in an act of parlia- but not those

ment every man's consent in included. ^°^" before;

•^ . • but all the

children of one naturalized shall inherit, as well those born before as after, Co. Lit. 8.
Style's R. 139.

A man may be made a denizen in tail, for life, years, or upon 2 Jones, 12.
condition : so the king may make a particular denization, as if ^™-'^^^- ^3^-
he grants to an alien qtiod in qidbiisdam curiis suis Anglitv audi- '^^ ^'t. 129. a.

atur

170 ALIENS.

ulur ut Anglus, et quod non repeUatur per illam excepiionem qttod
est alienigena.
Co. Lit. 1 89. 0. But one cannot be naturalized, either with limitation for years,
2 Roll. R. 95. life, or in tail, or upon condition; for it is against the absolute-
ness, purity, and indelibility of natural allegiance.
Carter 185 ^^ * "^^" ^^ naturalized in Ireland by the parliament there, this

aKcb.eoi. is no naturalization as to England, for the parliament of /r^/an^
2 Jonc«, 12. hath no direct or consequential power of binding England; and

2 Vent. 2. naturalization is but a fiction, which can only bind those that
But a natu- . , ..

ralization in consent to it. .,,.,, u « • u

England makes a man a natural-born subject of Ireland, Vaugn.291. hie is here made a
natural subject of the Britith dominions. [But Q,u. since the statute of 25 G. 3. c. 28.]
Roll. Abr. 195. If an alien be made a denizen, and the letters of denization
Manning's Yiaye a proviso (usual in such charters (a), that the denizen shall
^"c r^Txhis ^^ ^^ Mege homage, and that he shall be obedient, and observe
proviso is the laws of this realm ; this proviso is not any condition, for
required by though he never doth his liege homage, nor is obedient to all
Stat. 32 H. 8. j.j^g j^^g of this realm, yet this will not make the denization voidj
C.16. $ .J £^j, \^\iQ doth not observe the laws, he shall forfeit the penalties

appointed by them.
vJac.i. 0.2. By the 7 Jac. 1. cap. 2. it is enacted, " That no person or
IIThis provision " persons of what quality, condition, or place soever, being of
was dispensed « the age of eighteen years or above, shall be naturalized or
T' h* *th " '''^stored in blood, unless the said person or persons have re-
famous Jew " ceived the sacrament of the Lord's Supper within one month
Bill, 26 G. 2. " before any bill exhibited for the purpose ; and also shall take
c. 26. ; but this <t ^he oath of supremacy and the oath of allegiance in the parlia-
statute wasre- « pient house, before his or her bill be twice read ; which oath
27 G. 2. c. i.|| " the lord chancellor, or lord keeper, and the speaker of the

" house of commons, have authority to administer."
Molloy, bk. 3. A denizen is not capable of nobility, or to sit in parliament ;
c 3. § 14. for that to have a power of making laws it is necessary he should
be totally received into the society, which he cannot be without
the consent of parliament.
[Co. Litt. 278. [If ^^ alien be a disseisor, and obtain letters of denization, and
b.] then the disseisee release unto him, the king shall not have the

land ; for the release hath altered the estate, and it is, as it were
a new purchase ; othei'wise it is, if the alien had been feoflfee of
the disseisee.]
Fish V. Klein, ||But where an alien trustee joins in a conveyance, and after-
2 Meriv. 431 . ; wards obtains an act of naturalization, by which it is declared
52*^2 Ves 286* ^^ ^^ ^^ ^^"^ thenceforth naturalized, and shall be and is
538. 5 Bro. enabled to " ask, take, have, retain, and enjoy all lands which
P.C. 91. " he may or shall have by purchase or gift of any person what-

" soever," and " shall be, to all intents and purposes, as if he
" had been a natural-born subject," this act cannot retrospec-
tively confirm the title of the purchaser under the conveyance
previous to the act.||
1S& 15 W. 3. By the 12 & 13 W. 3. cap. 2. it is enacted, " that no person
" born out of these kingdoms, (although he be naturalized or
" made a denizen,) except such as are born o^ English parents,

« shall

(B) Of Naturalization and Denization,

171

[{a) A natu-
ralized person
is not eligible

" shall be capable to be of the privy council, or a member of
" either house of parliament, or to enjoy any office or place of
" trust, either civil or military ; or to have any grant of lands,
" tenements, or hereditaments from the crown to himself, or to
" any other or others in trust for him."

But this statute by the 1 Geo. 1. stat. 2. cap. 4. is explained iG. i.stat. 2.
so as not to extend to disable or incapacitate any person, who c.4.
at or before his majesty's accession to the crown was natural-
ized, to be of the privy council, or a member of either house
of parliament, 8fC. ; and by this statute is is enacted, " that no
" person shall hereafter be naturalized, unless in the bill exhi-
" bited for that purpose there be a clause, or particular words
" inserted, to declare that such person shall not thereby be en-
" abled to be of the privy council, or a member of either house
" of parliament ; or to take any office or place of trust {a) either
" civil or military, or to have any grant of lands, tenements, or
" hereditaments from the crown, to himself, or any other in trust to the office
*' for him; and that no bill of naturalization shall hereafter be of constable.
" received in either house of parliament, unless such clause or m^. when any
" words be first inserted or contained therein. (6)" foreigner, dis-

tinguished by eminent rank or services, is naturalized, it is usual first to pass an act for tiie
repeal of these statutes in his favour, and then to pass an act of naturalization without any
exception. 4 Ann. c. 1. 7 G. 2. c. 5.

[And by 14 G. 3. c. 84. it is enacted, " that no naturaliz-
" ation bill shall in future be received, unless there shall be a
" clause in it, declaring, that the person to be naturalized shall
" not thereby obtain, or become entitled to claim within any effect in natu-
" foreign country, any of the immunities or indulgences in trade, ralization bills
" which are or may be enjoyed or claimed therein by natural- ^^'03*^ ^"^
" born British subjects, by virtue of any treaty or otherwise, acT^'llie nrac-
" unless such person shall have inhabited or resided within Great tice had ob-
" Britain^ or the dominions thereto belonging, for the space of tained ever
" seven years subsequent to the first day of the session of parlia- '^'"'^^ '^^ J'^^"^
" ment in which the said bill of naturalization shall have passed; sequence^o"a
" and shall not have been absent out of the same for a longer petition to
*' space than two months at any one time during the said seven parlianient at
« years " {c\ ^^^ tvm^ from

\ , the City of

London, complaining of the great abuse of the privileges of naturalization in this respect.
Debrett's Deb. 5 vol. 124.]

By statute 13 G. 2. c. 3. every foreign seaman, who in time of is G.2. c. 3.
war serves two years on board an English ship by virtue of the
king's proclamation, is ipso facto naturalized under the like
restrictions as in 12 W. 3. c. 2.; and by statutes 13 G. 2. c. 7. 12W.3. c. 2.
20 G. 2. c. 44. 22 G. 2. c. 45. 2 G. 3. c. 25. and 13 G. 3. c. 25. is G. 2. c. 7.
all foreign Protestants and Jews, upon their residing seven years ^oG 2 '^4^'
in any of the American colonies, without being absent above two 2 G. s. c. 25.'
months at a time, and all foreign protestants serving two years 13 G. 3. c.25.
in a military capacity there, or being three years employed in
the whale-fishery, without afterwards absenting themselves from
the king's dominions for more than one year, and none of them
falling within the incapacities declared by statute 4 G. 2. c. 21.

shall

14 G. 3. c. 84.
[(c) It was
usual to insert
a clause to this

igCt ALIENS.

shall be (upon taking the oaths of allegiance and supremacy, or,
in some cases, making an affirmation to the same effect,) natu-
ralized to all intents and purposes, as if they had been born in
this kingdom ; except as to sitting in parliament or being of the
privy council, and holding offices or grants of land, S^c. from the
crown within the kingdoms of Great Britain and Ireland. By
statute 26 G. 3. c. 50. § 24.. 27, 28. and 28 G. 3. c. 20. § 15.
every foreigner who has established himself and family in Great
Brttaiji, and carried on the southern whale-fishery, and im-
ported the produce thereof for the space of five years succes-
sively, is declared to be entided to all the privileges of a
natural-born subject.]

Vaugh. 227. A N alien cannot purchase (a) or inherit any lands [in this
291. 7 Co. 16. country, because an interest in the soil requireth a perma-

Dyer, 2. pi. 8. ^^^^^ allegiance, which would probably be inconsistent with that
£g1it that ^hich he oweth to his own natural liege lord.]
the laws aipiinst aliens were introduced in the time of Henry the Second when a law was made
at the [)arlianient of Wallingford for the expulsion of strangers, in order to draw away the
Flemings and Ficards who were brought into the kingdom by the wars of King Stephen.
Daniel, 67. Others have thought that the original of this law was far more ancient ; and
that it is an original branch of the feudal law ; for, by that law, no man can purchase any
lands without being obliged to fealty to the laws of whom they are holden ; so that an alien,
who owed a previous faith to another prince, could not take an oath of fidelity in another
sovereign's dominions, Spelm. tit. Ligeantia, 568. Custumer, c. 43. Some restraints have
been laid upon aliens by the laws of almost all countries. Among the Romans, the civet
Romani only were at first esteemed freemen ; afterwards, when their territories increased, all
the Italians were made free, under the name of Latins, only they had not the privilege of
wearing gold rings, which was altered by Justinian ; at last, all born within the pale of the
empire were citizens, in orbe Romano qui sunt, ex conslitutione Imperatoris Antonini civet
Romani effecti sunt. Vicinius, 27. Dig. Lib. 1. tit. 5. fo. 16. Dio Cassius relates the occasion
of this constitution being made, in Excerpt. Vales, p. 751. The Orbis Romanus of Spanheim
is a complete history of the progressive admission of Latium, Italy, and the provinces, to the
freedom of Rome. Lord C. J. Hale saith, that the law of England rather contracts than
extends the disability of aliens, because the shutting out of aliens tends to the loss of people,
who, when laboriously employed, are the true riches of any country. Ventr. 427, 2 Roll.
Rep. 94. [a) He may purchase, but cannot hold. Co. Lit. 2. b. Therefore, if tenant in tail,
he may suffer a recovery, and dock the remainders. Goldsb. 102. 4 Leon, 82. Bro. tit.
Denizen and Alien, 17. On a covenant to stand seised, an use will arise for an alien. Godb.
275. But by act of law, he cannot take, as by descent, courtesy, dower, guartlianship. Ventr.
417. Molloy, 464. 7 Co. 25. By a special act of parliament, not printed. Rot. Pari. 8 H. 5.
n. 1 5. women aliens marrying Englishmen, with the king's licence, were allowed in future to
demand dower. But this act not extending to those married before, therefore, in Rot. Pari.
9 H. 5 n. 9. there is a special act of parliament to enable Beatrice Countess oi Arundel, born
in Portugal, to demand her dower. Hal. MSS. Hargr. Co. Litt. 31. b. n. 9. See ace. Roll.
Abr. 675. The disability of an alien to hold lands for his own benefit is not to be considered
as a penalty or forfeiture ; but ariseth merely from the policy of the law ; and therefore, it
hath been adjudged in equity, that he cannot demur to a discovery of any circumstances
necessary to establish the fact of alienage. Attorney-General v. Duplessis, Parker, 144. 5 Bro.

Sid. 193. 198. And as an alien cannot inherit himself, so he cannot be
429. Colling- "iherited ; the grandfather born in England^ the son an alien,
wood v. Pace, the grandson born in England^ the grandson shall not inherit
Hard. 224. Co. the grandfather, because he must then represent the father,
Lite 8. cont. who cannot be represented ; but if the father be an alien, and

two

two brothers born in England, they may hiherit each other,
because the descent is immediate, and they do not take by
representation of the father.

If the eldest son be an alien, the younger brother born in Vent. 417.
England shall inherit the father ; otherwise it were if the eldest ' .^"*'- ^- ?L,
son were attainted, because the eldest son and all his descend- ^Ixher being a
ants are before the younger brother, and the younger brother natural-born
cannot inherit before that line is extinct; and it is a foreign pre- subject, the son
sumption, to suppose that any of that line should come over and "^^^^^ be so
have children in England; but the person attainted is supposed of the^statutes
to have all his children residing in the kingdom under the king's of 7 Ann. c. 5.
allegiance, therefore there is a line continuing before that of and 4 G. 2.
the younger brother. ^^f^^'^ "'""''•

For the same reason, if an alien hath four sons, the two eldest
aliens, and the two younger naturalized, and one of the younger
sons purchaseth lands and dies, the eldest brother having issue
born within the realm, the younger brother, and not the issue of
the eldest, shall inherit.

If an alien hath a son alien, and afterwards is made a denizen, Cro. Jac. 539.

and hath a second son, the second son shall inherit, thouffh the ^"'^ ^° ^\ ^ ^"*^'
M ^ u ^^ ' o 8. a. to be un-

eldest son be alive. derstood.

If an alien hath issue two sons, A. born beyond sea, and B. Palm. 5. Cro.
born in England, and A. is naturalized, he shall inherit B. l^*^' •539. God-

And now by the 11 & 12 W. 3. c, 6. it is enacted, " that all 11 & 12 W.s.
" and every person or persons, being the king's natural-born ^^ ^•
" subject or subjects, within any of the king's realms or domi- ^j^^®, ^^^^^
" nions, shall and may hereafter lawfully inherit and be inherit- scendinfr to an
*' able, as heir or heirs to any honours, manors, lands, tenements, alien could
" or hereditaments, and make their pedigrees and titles by "°*^ ^]^ taken
" descent from any of their ancestors, lineal or collateral, al- 1 ^"J'' ^?^»
" though the father and mother, or fathers or mothers, or other could not ^
" ancestor of such person or persons, by, from, through, or oblige his per-
*' under whom he, she, or they shall or may make or derive their ^?" and ser-
" title or pedigree, were or was, or is or are, or shall be born V^^^- ^"^ «*
" out of the king's allegiance, and out of his majesty's realms that subjects '
" and dominions, as freely, fully, and effectually to all intents within the al-
" and purposes, as if such father or mother, or fathers or legiance, who
" mothers, or other ancestor or ancestors, by, from, through, or him^rif "kf^
" under whom he, she or they shall or may make or derive disabled from^
" their title or pedigree, had been naturalized, or natural-born conveying de-
** subjects." scent, by the

operation of a
reason of which the very reverse was true as to themselves, therefore this statute was made. Law
of Forfeit. 84.] See 25 G.2. c. 39. which obviates some doubts that may arise therein, and con-
fines the benefit of this statute to such heirs as shall be living, and capable of taking the estate
at the death of the person last dying seised. But in case the descent shall be cast upon a
daughter, and there shall be afterwards a son born, or one or more daughter or daughters, the
descent so cast upon the daughter shall, in the one case, be entirely divested in favour of
the son, and the after-born daughter or daughters shall, in the other case, inherit in copar-
cenery with her.

If an alien purchases land, the king shall have it upon office Co. Litt. 2. b.

found ; for since the freehold is in the alien, and he is tenant to "j?'f'r^' ^^**^

the lord of whom the lands are holden, it cannot be devested pi.'oi. "'

rf^

ALIENS.

pi. 61. Dyer,
283. pi. 31.
Note; There
are two sorts
of offices, an
office of enti-
tling, which is

o? Mm but by some notorious act, by which it may appear tlmt
the freehold is in another ; but if an alien purchases lands and
dies, then the freehold is in the king without office found, be-
cause no man can take it as heir to the alien, therefore the free-
hold is cast upon the king; but if an alien purchases, and after-
wards is made a denizen, and then hath issue, and dies, the issue
shall inherit till office found, because there is a person in being
to take as heir to the denizen, upon whom the law casts the
freehold, which is not to be devested out of him without the
solemnity of an office.
Goldsb. 29. If an alien and a subject purchase lands to them and their

pi. 4. Leo. 47. i^eii-s^ tJie survivorship shall take place till office found, but the
office found entitles the king, and severs the joint-tenancy ; for
the freehold is in the alien by the solemnity of livery, till it is
devested out of him by solemn office found ; and every person,
who is resident in the kingdom, is supposed a natural-born
subject, till the contrary be found by office,
under the great seal ; and an office of instruction, which is under the seal of the Exchequer ;
the office of entitling is an inquest, which gives the king a title, as here in the case of
aliens, &c. 5 Co. 52. Page's case. See Gilb. Hist. View of the Exchequer, 132, 1.53, 134.
Gilb. Hist. Chan. 12. [The king has a title before office found; the office vests the possession.
5 Co. 52. Hob. 153. Parker, 152. Choses in action belonging to an alien enemy are forfeit-
able to the crown, but there must be an inquisition to entitle the king ; and if a peace be made
before the inquisition is taken, the cause of forfeiture is discharged. Attorney-General v.
Weeden and Shales, Parker, 267.]

Roll. Abr. 194. If an alien purchases a copyhold in fee in the name of J. S.
j\^l\\]'^' ini trust for him and his heirs, though it be found that the copy-
14. Stile 20 ' ^®1^ ^^^ ^" ^""^^^ ^°^ ^^^ alien, and that J. S. had the legal estate,
yet the king must sue in Chancery to have the trust executed
for his benefit.

II An alien cannot hold property as a trustee, or make a good
conveyance of it to a purchaser. Where an alien was a joint
devisee in trust, and joined in a conveyance of the trust estate to
a purchaser, and after the conveyance, in order to confirm the
title, procured an act of naturalization, whereby he was author-
ized, "to take, retain, have, keep, and enjoy all manors, lands," Sj-c.
the Vice-Chancellor held, that the estate being out of the alien at
the time of the conveyance, and the act being silent as to it, the
vendee was not in a better situation than the alien himself. —
N. B. The vendors had endeavoured to have retrospective
words introduced into the naturalization-act, but a departure
from the common form was found impracticable. ||

[An alien infant, under the age of twenty-one years, cannot be
a merchant trader within this realm, nor can he enter any goods
in his own name at the custom-house.]

An alien cannot purchase a lease for years of lands, but he

_ _ ^^ may, if he be a merchant (a), take a lease of a house for his

to rent houses, habitation, for years only, and this is for the encouragement
and to buy and of commerce; for if an alien trade he must have an abode
c^mmoditS" among "s; but if he depart the kingdom, or die, it goes to
themselves, ^^^ ^^"S' "^^ t® ^is executors or administrators {b) ; because it
without any in. was Only a personal privilege annexed to the alien, as a mer-
chant,

21. 41. 76.
Parker, 156.

Fish V. Klein
2 Meriv. R.
431.

fit. 13 & 14
Car. 2. c.ll.
$ 10.

[Merchant
strangers were
first permitted

chant, for the encouragement of commerce, and consequently terruptionfiom
must expire with him, without going to his executors or ad- *^^ citizens,

ministrators. fj^l' ^^^ f ''«•

1284 ; for be-
fore that time they hired lodgings, and their landlords were the brokers, who sold all
their goods and merchandizes for them, Rapin, 361. note 9. Fab. Chron. This indulgence,
together with the loss of their brokerage, seems to have provoked the resentment of the
citiaens : for, in the Parliament Roli, in the 18th year of Edward the First, {viz. A.D. 1289),
we find the following petition, and answer : " Gives London, pctunt quod alienigena; viercatoj'cs
" expellantur a civitate, quia ditentur ad dcpaupcrationem civiuvi" See. — Responsio : " Sex
'* intcndit quod mercatores extranei sunt idonei ct utiles magnatibus. Sec. ct non habet concilium
" eos expellendi" 2 Inst. 741.] (a) Poph. 36. Co. Litt. 2. b. and the notes in 14th edit.
Roll. Abr. 194. must be a merchant, {h) Not if he goes beyond sea, and leaves servants in his
house during his absence. Dyer, 2. b.

But by the 32 H. 8. c. 16. paragr. 13. it is enacted, " that 32 H. s. c. le.
" all leases of any dwelling-house or shop within this realm, or par. 13. [Sir W.
*' any of the king's dominions, made to any stranger artificer, or /, ri ]°"p
" handicraftsman born out of the king's obeisance, not being ^^2.) says th'at
" denizen, shall be void, and of no effect ; and the person so the statutes,
" taking such lease forfeits lOOZ. and the person letting 100/. prohibiting

" more ; one moiety to the king, and the other to him that will f ^^" artificers
et c ai >j '^ work tor

" sue for the same. themselves, are

generally held to be virtually repealed by the stat. 5 Eliz. c. 7.; but there doth not appear to be
any other authority to that,effect. 1 Wooddes. 575. note.] liThe statute 32 H. 8. c. 16. § 13.
is unrepealed, and surely requires the revision of the legislature. Though the statute avoids
leases, &c. made to stranger artificers, yet if such artificer occupies a dwelling-house or shop
under an agreement which does not amount to a lease, as if he be tenant from year to year,
or for one year or a shorter time, an action for use and occupation lies against him. 2 Show.
135. And if an alien-amy occupy a dwelling-house of the yearly value of 10/. as such tenant,
and reside in it forty days, he gains a settlement. The King v. Eastbourne, 4 East, 105. j and
see Hargr. & But. Co. Litt. 2. b. notes 7, 8.?; and 1 Will. Saund. 7, 8.|1

Upon this statute the case was, an action of debt was brought Sand. 1, to 10.
upon an obligation, and upon oyer demanded of the condition, ^^^ ^^- ^' ^*
it was recited, and it referred to indentures, which indentures were j jg^ *g q'
likewise recited in hcoc verba; the indentures were upon a lease 2 Show. R,
of a house in Westminster, reserving rent with covenants, Sfc. ; 135. S. C.
the defendant pleaded 32 H. 8. c. 16. and that he was an ^^J^l'd^^'^b
alien, S^c. and so would avoid the, lease and the rent, and all the ^Sod^^law rio '
.security; divers exceptions were taken to this plea. 1. He has this case two '
not said where he was an artificer, but this was over-ruled ; for actions were
it is a personal quality, and shall follow the person, and is uni- ^'■^"ght ; the
versal. 2. The defendant ought to have set forth and pleaded rg^t- theother
the indenture; hnt per Cur., — since the plaintiff has brought it the action here
into court, as must be intended, and set it forth, the defendant mentioned. la
may plead upon it without setting it forth again. 3. The plea f*" ^^^ ®*^",
is, that indentura prccdicta vacua existii, and this was likewise gd • it was in
overruled ; for the law is, that the indenture and bond make but the first that
one security, and if the covenant be released before breach, the the objection
bond will signify nothing. 4. This appears to be a messuage ["fro made, for
i. u Ju u ^ J -i.^ 1 • u ° the want of the

or tenement, but he has not averred it to be a mansion-house or averment was

shop, according to the statute ; and upon this point the court at taken : for the
first were divided. Keyling held, that messuagium is mansum, other stood
et quod dare constat non debet ve^-jficare. Morton : Though 7nes- ^ ^. f^,
smigium be a word of art, and may be applied to other things by opinion of the*^
a large sense, as to a barn or chapel ; yet in propriety it is a court was not

mansion-

176 ALIENS.

mansion-house, and sliall be intended so. Twisden and WyndJiattti
on the point ; ^^{0.1 it ought to have been averred ; for he must bring himself
Int.^belie'vinV precisely within the statute, especially in such a case as this,
iha't jutlgment where he would avoid his own contract; but afterwards the
wouUl be pro- defendant had judgment,
nounced.
against him, submitted.]

2 Show. R. A special verdict found, that the plaintiff made a lease of a
135. Piliiing- jioQse to the defendant, who was found to be an alien artificer,
ton V. Pe^^jCh, ^^j ^^^^^ ^^j^j^ j^^^^ ^^^^ made by indenture between the plaintiff
inent° (o)^iit and defendant, and that there was no other security or promise
per Cur. -there made by the defendant; and that the defendant entered, and
are other ways enjoyed so long, for which the plaintiff brought a 5'?m«/ttw
to evade It; as, ^ ^^y^ ^^ which the defendant pleaded no7i assumpsit ; and the
to make an i.<>i vi iiii

agreement for matter bemg round ut supra, the court held, that an assumpsit

as long as you would not lie. 1. Because this (a) would evade the statute.

and I please, g. A promise in law ih) never takes place where there is an

at the rate of ^ , ^ , ^

20/. per annum actual agreement.

for an assumpsit ^iu ije thereon ; or, you shall have my house for so long as you and I please,

for so much as it is worth. (Jb) No such thing. 6 Mod. 131.

3 Mod. 94. Debt upon an obligation for performance of covenants in a
r'hV^^'^1 ^^^^ ®^ ^ house, S^c; the defendant pleaded the statute of
Front^!" *" ^2 ^* ^* ^' ^ ^' ^"^ ^^^ forth that he was a vintner, and alien

artificer ; and upon demurrer it was insisted upon for him, that

a vintner is as much an artificer, and within the meaning of the

statute, as a mercer, draper, or grocer. Chief Justice : — This

statute refers to another made 1 R. 3. c. 9. tohich prohibits alien

artificers to exercise any handiaaft in England, unless as servant

to a subject skilful in the same art, upon pain of forfeiture of his

goods ; now the mystery of a vintner chiefly consists in mingling

wines, and that is not properly an art, but a cheat; so the

plaintiff had judgment.

7 Co. 25. Co. If a woman alien, be she friend or enemy, marry a subject,

Liu. 31. a. b. gj^g shall not be endowed; because, by the policy of the common

But by the law ^^» ^^ aliens are disabled from acquiring any freehold amongst

of the crown, US : dower, too, is an estate created by act of law ; and therefore

if the king mar- the law, which nilfrustra agit, shall not transfer an estate to one

17 an alien, she ^yj^^ cannot keep it ; but must immediately, in respect of her

dowed,because ^^S^^ disability, give title to another: and there is a diversity

princes cannot between such acts of law and the acts of the party himself; as if

marry accord- an alien makes an actual purchase, Sfc. so aliens shall not be

d^nUyl^unJess '^nants by the courtesy, by the same reason.

to persons abroad; and now, by a special act of parliament, not printed, 8 H. 5. 12. 15.
women aliens who marry with the king's licence, to Englishmen, shall be endowed ; so of
English women who marry aliens by the same licence; but this latter part can only be meant
where the alien husbands are after made denizens, that their wives shall have dower of lands pur-
chased before ; for otherwise they, having no capacity at all to hold any lands of any estate of
freehold, can derive no title of freehold to their wives, and this act never intended to put
them in a better condition for that purpose than they were before ; but it must be intended
of land purchased before their denization ; since as to land purchased after, they would not
want the assistance of an act of parliament, being by the common law dowable of these. Roll.
Abr, 675. If one marries a woman alien without such licence, and then sells his lands, and
after the wife is made a denizen, she shall not be endowed, because her capacity began by the

denization,

denization, and she was before absolutely disabled to hold any land ; but if this marriage were
by the king's licence, then it seems the wife may be endowed, because being married conform-
able to that act, her title to dower began presently, and cannot be defeated by any after-act of
the husband's. Co. Litt. 33. a. 13 Co. 23.

Aliens seem not incapable [of the superior ecclesiastical pre- Comp. in-
fer ments (a),] and though this practice, says Watsoji, has always cumb. 213,
prevailed, yet, says he, it proceeded rather from the pope's p^^" Hughes's
usurpation, and a submission to his pretended authority in q ■^^^ ^ ^i^
church matters, than from any nice distinctions made use of Abr. 548.
between spiritual and laymen, that the former would less dis- 4 Inst. 338.
cover the secrets of the realm, or transport the treasure thereof ^^°°',t^'
to nourish the king's enemies, than the latter. ^^^ „gg ^^*

(a) Aliens prohibited to take benefices without the king's licence. 5 R. 2. c. 3. 7 R. 2. c. 12.
1 H. 5. c. 7. [To the first of these statutes, it is said, in the old abridgment, that the Lords
Spiritual did not assent.]

[By the statute of 24 G. 3. c. 35. the bishop of London, or 24 G. 3. c. 35.
any bishop appointed by him, is enabled to ordain aliens either
as priest or deacons, without requiring them to take the oath of
allegiance, provided that they do not officiate in any place within
the king's dominions : and further, that in the letters testimonial
of such orders, the name of the person so ordained be inserted,
with the addition of the country to which he belongs, and the
further description of his not having taken the oath of allegiance,
being exempted from so doing by this act.

II Aliens are disqualified to serve on juries or inquests, except gQ 4. c 50
juries de medietate lingua. ' § 3. Alienage

IS a ground of challenge to a juror, and the objection must be taken when the party has an
opportunity of challenging. And it seems not to be a ground- of challenge to a special juror.
See the King v. Sutton, 8 Barn. & C. 417.

By 5Q G.3. c. 86. various regulations are established respect-
ing aliens arriving in or resident in this kingdom ; but this sta-
tute, after having been continued by several subsequent acts,
has now expired. By 7 G. 4. c. 54<. (commencing 1st JwZy, 1826) 7G. 4.c. 54.
the above act is recited as being about to expire, and it is
recited to be expedient, in lieu of its regulations, that provision
should be made for a complete registration of all aliens, and it
is enacted that every alien in the realm at the commencement
of the act shall, within foui'teen days, make a declaration of his
abode, name, rank, 4'^.; and if a domestic servant, then also of
the abode, S^c. of his master or mistress, and of the country
from whence he came, or of which he is a native, and of the
time when he last came into the realm, and shall, within the
said fourteen days, transmit the same to one of his majesty's
secretaries of state, or, if in Ireland^ to the chief secretary of the
lord lieutenant.

By § 2. the master of every vessel arriving from foreign parts $ 2.
sliall immediately on arrival declare to the chief officer of cus-
toms at the port of arrival, whether there is any alien on board,
and shall specify the number (if any) on board, or who have
landed from his vessel, and their names, rank, Sfc, under penalty

Vol. I. N ' of

178 ALIENS.

of 20/. for every false declaration, and of 10/. for every alien
whom he shall have neglected to declare,
5 J, By § 3. every alien who shall, after the commencement of the

act. arrive in the kingdom shall deliver to the chief officer of
the customs at the port of debarkation any passport in his pos-
session, and declare in writing the name of the vessel in whicli
he shall arrive, and also his name, rank, 8fc. and the conntry
from whence he shall have come, and the place to which he is

going, and the name of the person (if any) in the realm to whom
e is known ; and if any alien shall neglect or refuse to deliver
up his passport, he shall forfeit 5/.; and if he shall neglect to
make such declaration, or shall wilfully make a false one, he
shall (by § 9.)) on conviction before two justices, forfeit 50/., or
be imprisoned not exceeding six months.

§ 4 & 5. By § 4 & 5. the officer to whom the passport shall be de-

livered and declaration made shall register the declaration, and
shall deliver a certificate thereof to the alien, and shall, within
two days, transmit the declaration and copy of the certificate
to the alien office, Westminster.

§ 6. By ^ 6. every alien shall, within one week after his arrival,

produce such certificate at the alien office, Westminster^ and
declare where he intends to reside, or, if the place to which he
intends to go is more than five miles from Westminster, shall
transmit such certificate and declaration by post to the alien
office, or, in case of neglect, shall be punished as above.

$ 7. By § 7. every alien shall, on the first day of January and

Jidy, or within a week therefrom, make a declaration of his
residence, and state therein at what place he intends in future to
reside, and transmit the same to the alien office, under the
penalties above mentioned.

§ 8. By $ 8. one of the secretaries of state may require any alien

to make a declaration of his actual place of residence, and of the
place at which he intends to reside in future, at shorter intervals
than those above mentioned ; and if the alien shall refuse, he
shall be punished as above.

§ 10. By § 10., on receipt at the alien office of any declaration in

the cases aforesaid, a clerk nominated by the secretary of state
shall, within three days, make out a certificate, setting forth tlie
name, rank, S^c. of the alien, and his place of abode, and shall
transmit the same by post to such alien ; and any alien being
by his own defeult without such certificate, or residing without
lawful excuse in any other place than that expressed in it, shall
forfeit 20/.

{For further provisions^ see the act,)^

*
(C 2) How far the Laws of this Country attach upon

Aliens.

1 Wooddes. A^ ^^*^"* whilst he resides here, is generally subject to our
379. Fost. Cr. laws, and owes a local and temporary allegiance to the sove-
reign,

(C 2) How far the Laws of this Country attach upon Aliens. 179

reign, by whose authority those laws are administered, and by Law is 5.
whom his person and property are protected ; consequently, if ' Hawk. P. C.
during such residence he commit an offence, which in the case 9 Ann c 16 '
of a natural-born subject would amount to treason, he may be Hob. 271.
dealt with as a traitor; and this whether his sovereign be in
amity or at enmity with us. My Lord Coke's position, therefore, s Inst. 4, 5.
that an alien enemy cannot be guilty of treason, must be taken
with this restriction, namely, where he invades this country, and
is taken in war : in which case, indeed, he is not punishable at
all, according to the course or by the rules of the municipal in-
stitutions, but is to be dealt with according to the law of nations
in martial affairs.

It is declared by statute 32 H. 8. c. 16. § 9. That every alien,
coming into the king's dominions, shall be bounden by and unto
the laws and statutes of this realm.

But a French prisoner of war, being indicted for privately Post. Cr. L.
stealing in the shop of a goldsmith and jeweller a diamond ring, 188. note,
which by statute 10 & 11 W. 3. c. 23. is an offence punishable Moliere's case.
with death, the judge who tried him thought it improper to i^arned^writer
proceed capitally upon a local institution, and therefore advised observes, the
the jury to acquit him of the circumstance of stealing in the shop, humanity of
and to find hira guilty of simple larceny to the value laid in the '^^ J"^se was
indictment.] ^ ' "^ at least more

-^ conspicuous

than the eoundness of the principle, as a point of mere law'. I Wooddes. 382.

II Aliens are subject to be tried here for offences committed on The King ▼.
the high seas, under the provisions of the 28 H. 8. c. 15. ; but it Depardo.
appears that they are not liable to trial by special commission, Aliens^are en-
issued under the S3 H. 8. c. 23. for offences committed on shore titled to be
in foreign countries. Where a Spanish prisoner of war entered tried by a jury
as a volunteer on board an East India company's ship, and, '(^ medietate
while remaining one of the crew of such ship, committed a man- "W^' „ ^!f

1 1 ^ • ^y • 1 1 1-1 1 . 6 (j. 4. C. 50.

slaughter, at Canton m China, where the ship lay, and was m- § 47,
dieted at the Old Bailey for feloniously killing and slaying, on
the 43 G. 3. c. 1 1 3., a case was stated and argued before the
twelve judges, on which no judgment was given ; but the pri-
soner was afterwards discharged. ||

[Aliens are comprehended within the statute 25 E. 3. c. 4. for 2 Hawk. P. C.
extending the benefit of clergy, according to a very old interpret- ^^n[ ^' ^'^oo
ation of that law. * ^'"Sy'P'

A resident alien, it hath been adjudged, is entitled to the be- Courteen's
nefit of a general pardon ; but, if he is not in the kingdom at the *^^^» ^^^' ^'°'
time of the promulgation of the pardon, he is not within the be-
nefit of it, for he is no otherwise a subject but by his residence
here.

Aliens are subject to, and shall have advantage of the statutes ^^ 21. Jac.s.
against bankrupts. ^' ^^' *' ^^'

The property of an alien resident abroad, consisting of stock 1 Atk, 19.
in the public funds, or other personal effects in this country, is llW^hat court
subject to the controul of the Court of Chancery, {a) ^^X the copy-

right of a foreigner. Delondre v. Shaw, 2 Sim. 257. Where both parties were subjects of
Denmark^monQy belonging to the wife was ordered to be paid to the husband, the law o( Den-
mark not requiring a settlement, Dues v. Smith, 1 Jac. 544.||

N 2 But

180

ALIENS.

Pi pen V. PipcPj
Ainbl. 25.
Burn V. Cole,
Jd.-ilS.

Mclan V. Duke
of Fitz James.
1 Bos. & Pull.
138.; and see
Talleyrand v.
Boulanger,
3Ve8.449.
De la Vega v.
Vianna.
1 Barn. &

But if an alien resident abroad dies intestate, his whole pro-
perty here is distributable according to the laws of the country
where he so resided : but the residence must be stationary, not
occasional, else the municipal institutions will not attach upon
the property.]

II Where an alien in a foreign country entered into a contract

which, according to the law of that country, did not subject his

person to arrest, it was held by the Court of Common Pleas

{Heath J. dissent.), that he was not liable to arrest upon it in this

country.

But Lord Ellenhorongh in 2 East. 445. expressed his dissent
from this doctrine, and it has lately been overruled by the Court
of King's Bench, who have decided that a party may be arrested

Adolph. 284.; jj^ ^j^jj. country for a debt contracted in a foreign country, though

& C. 658. ' ^^ ^^^ of s\iic\\ country do not allow arrest for debt.

1 Jac. & VV. 405.

.78 G. .5.0. 50. By 38 G. 3. c. 50. § 9. it was enacted, That aliens in this

§9. 1 he pro- country, who had quitted their countries by reason of the revo-

Visions oi tnis . * ^

act were re- lution and troubles in France, should not be liable to be arrested

pealeil, but for any debt or cause of action contracted while such aliens were

were re-enact- not within the dominions of his majesty ; and in case of any such

by subse- arrest, the alien should be discharged by his majesty's courts, or
quent acts, , .' , . . rs j j j '

which were ^Y ^ J""ge m vacation,
last continued by 3 G. 4. c. 37, and they are now expired.

Sinclair v. Charles Philippe, Monsieur de France (afterwards Charles the

Philippe Tenth), having contracted with Sinclair, at Coblentz, for raising

Monsieur de troops for the service of the French princes, was held to bail in
France, 2 Bos. England for money paid here, and on an account stated here ;
but the Court of Common Pleas held, that the money paid, and
the adjustments in England, were referable to the original con-
tract abroad, and that the case was within the statute, and they
discharged the defendant on a common appearance. ||

(D) What Actions Aliens may maintain ; and therein
of the Difierence between an Alien Friend and one
whose King* is at Enmity with ours.

& P. 563.

Co. Lit. 11 9. b.

Anders. 25.
Dyer, 2. b.
[ (fl) And this
though resi-
dent abroad.
Dyer, 2. b. But
in such case
the courts of
K.B.andC.P.
require secu-
rity for costs;

^N alien friend may have personal actions (a), but not real ; an
alien enemy shall not have real, personal, or mixed action.
The reason why an alien friend is allowed to maintain personal
actions is, because he would otherwise be incapacitated to mer-
chandize, which may be as much to our prejudice as his ; but,
as to the allowing of him to maintain real actions, there is no
reason for it, because there is no necessity that he should settle
amongst us : an alien enemy (6) is disabled, from the prejudice
that may accrue to the king and kingdom, if he were allowed to
not. however, niaintain any actioj.

"u''' S J* ^j' "'•, ^ '^^"" ^- 267. 362. 2 H. Black R. 1 18. 4 Term R. 697.] (3) But
who &hall be said an alien enemy, and how it shall be tried, vide 9 Co. 51. a. That it shall be
tried by the record m Chancery, whether his prince is at peace or enmity with ours, for every

leaguej

(D) What Actions Aliens may maintain^ 8^c. 131

icapue is of record ; and Cro, El. 142. Owen, 45. That open acts done b}' his prince are
sufficient, and that it is not necessary that a war be proclaimed. Turks and Infidels are not per-
petui inimici, nor is there a particular enmity between them and us ; for the difference between
their religion and ours does not oblige us to be enemies to their persons. Salk. 46. j)l, 2. said
to be the words of L. K. Littleton. 1 Atk. 51. Vide Skin. 167. 204.

A merchant stranger shall have an action for saying he is a Yelv. i98.

bankrupt, for by law he may have personal actions, and these f uer'cote and

1 5 J* • ■ 1- ]•, • u- 4. 1 Morison.

words tend to impair his credit in his trade. g^j^.^. J34 gn

[By an express law, viz. St. 31 H. 6. c. 4. redress is pi'ovided for aliens who are injured by the
king's subjects on the sea, or in any part of the realm. 2 R. 2. s. 2. 3 Bulstr. 28.]

II An alien enemy, father of a child born in England of an The King v.
English wife, is entitled to the custody of the child ; and the De Manneville,
Court of King's Bench will not interfere with his right, unless ^^^^^221.
they see reason to believe that he intends to abuse it, by send-
ing the child out of the kingdom, or in some other manner, [j

An alien friend, merchant, may upon a statute extend lands, 1 1 Ed. 3. Rot.
which the king shall not have upon office, and for which he ?'^- I^yp'"* 2.b
shall have an assize in case of ouster ; for the main end andde- *" "f^rg*"*
sign of both the statute-staple and merchant was to promote and
encourage trade, by providing a sure and speedy remedy for
merchant strangers, as well as natives, to recover their debts at
the day assigned for payment.

An abbot, prior, or prioress alien shall have action real, pei:- Co. Lit. 129,
sonal, or mixed, for any thing concerning the possessions or a. b. Palm,
goods of their monastery here in England, because they sue in ^^' ^-P- ^^'^
their corporate capacity, and not in their own right to carry the p A^u^* ^'*u '
effects out of the kingdom, [a) sanie pnnciple

ft hath been holden, notwithstanding the statutes of 5 R. 2. c. 3. 7 R. 2. c. 12. and 1 H. 5. c. 7.
that an alien, incumbent on an ecclesiastical benefice, may maintain an action concerning the
glebe, tithes, &c. Hughes's Parson's Law, c. 10. cites Dr. Seaton's case, M. 8 Jac. 1. C. B.]

So an alien friend may be an administrator, and shall have Cro. Car. 8.

administration of leases, as well as personal things, because he ^ Upwell

hath them in another's right, and not to his own use. Vent. 417. S.

C. cited.

But it has been long doubted, whether an alien enemy may Cro.Eliz. 142.

maintain an action as executor : for on the one hand it is said, ^^"' ^^'j ,

that by the policy of the law, alien enemies shall not be permit- office of Exe-

ted to bring actions for the recovery of effects which may be cutors, 15.
carried out of the kingdom, to the impoverishment of ourselves,
and enriching of the enemy ; and therefore public utility must be

preferred to private convenience : but on the other hand it is said, Mollov, 870.

that these effects of the testator are not forfeited to the king by Cro. Eliz. 683.

way of reprisal, because they are not the alien enemy's, he being ^"- ^•''^•

to recover them for others: and if the law allows an alien enemy if^-^^'^lt^'^^^'

\ rr 11 T /• • 1 • 11 okm. o/O.

to possess the etiects as well as an alien friend, it must allow yidf. supra,

him power to recover them ; and if it were otherwise, it would be tit. Abatement

a prejudice to the king's subjects, who could not recover their CB), 3.

debts from the alien executor, by his not being able to get in the

assets of the testator.

II Not only an action cannot be maintained by an alien enemy, Brandon v.

but an action lies not in favour of one, though the plaintiff' on ^,^^^'"'

N3 tl^^ 6rennR.23.

ALIENS.

M'ConncU v.
Hector, 3B08
&P. 115.

Omealey v.
Wilson,
1 Camp. 481.
Roberts v.
Hardy, 3
Made ft S.

533.

tlie record be a subject of Great Britain. Thus, where an

action was brought on a policy by the English agent who

effected it, to which the defendant pleaded that the persons

interested (whose interest was alleged on the record) were

aliens born, and that before the ship sailed their sovereign was

at open war with the king of Great Britain, the plea was held

good ; and a replication, that the persons interested were indebted

to the plaintiff in more money than the value of the property

insured, was held insufficient.

Flindt V. But where the plaintiff sued as the British agent effecting the

Waters, 15. policy, and the defendant pleaded the general issue, and it

East, 260.; and appeared that the parties interested only became alien enemies

see 13 es. . j^ffgj, ^j^g j^gg jj^ppened, but before the suit; it was held, , that

the defendant could not take advantage of that fact by a plea

in bar, since the disability was only temporary, and might be

removed by the war ceasing.

An Englishman, residing and carrying on trade in an enemy's
country, is regarded as an alien enemy, and disqualified to sue.
And the mere residence, without trading, would seem to
take away his right to sue.
De Luneville v. Phillips, 1 New R. 97.

However, where an Englishynan went to America with his
family immediately after a declaration of war by that country
against Great Britainy but before such declaration was known
in England, and an act of congress enabled British subjects to
quit America within six months from such declaration, but he
remained in that country, but did not trade ; it was held, that
this mere residence did not, under the circumstances, amount to
adhering to the king's enemies, so as to incur the disability of
alien enemy.

If an alien is carrying on trade in an enemy's country, he is
it seems disabled to sue, notwithstanding he is resident in such
country, as consul of a neutral state.

If a contract be made with an alien enemy while he is such, it
cannot be enforced in England, even after peace is restored.
Thus, where A.y an alien enemy having goods in the hands of
B, in England^ drew bills upon him, which B. accepted on
; account of the goods, and A. indorsed them to C, a British
subject residing in an alien's country, who did not sue till
after peace was made ; it was held, that as A could not get at
his funds in this country directly, neither could he do it by
indorsing the bills to a third party, who must have been cogni-
zant of his object, and the plaintiff accordingly could not
recover.

Where bills were drawn by one British prisoner of war, de-
tained in France, in favour of another on a British subject in
England^ and indorsed by the payee to a French banker, an
alien enemy, who sued on them after the restoration of peace ; it
was held by the Court of Common Pleas, that the action was
sustainable under the peculiar circumstances of the case, since

the

Atbrecht v.
Sussmann,
2 Ves. & B.

323.

Willison V.
Pattcson,
7 Taunt. 439.
and see Bran-
don V. Curling,
\ East, 410.

Antoine v.
Morshead,

6 Taunt. 237.
1 Marsh 558.
S. C. ; and see
Daubuz V.
Morsheatl,

(D) What Actions Aliens may maintain^ ^c.

183

the bills were not drawn in favour of an alien enemy, but by 6 Taunt. 332.

one British subject in favour of another, upon a British subject ; ■^"'P' Bous-

and that the indorsement conveyed a good title to the plaintiff, ^^^cker.isVes.
on which the king might have sued during the war ; and he not
having so done, the plaintiff might sue after the proclamation of
peace.

The plea of alien enemy is a bar to a bill for relief in equity, Albrecht v.

as well as to an action at law : but it would seem not sustain- Sussmann,

able to a mere bill for discovery ; for, as an alien may be sued Ls ^
at law, and may have process to compel the appearance of his
witnesses, so he may have the benefit of a discovery.]!

If an alien enemy comes here sub salvo conductu^ he may main- Salk. 46. pi. 1.

tain an action ; so if an alien amy comes here in time of peace Wells and

per licentiam domini_ regis, as the French protestants did, and Williams. Ld.

lives here siib protedione, and a war afterwards happens between Fost™Cr^L,aw

the two nations, he may maintain an action, for suing is but a ise. Bro. tit*,

consequential right of protection {a) ; and therefore an alien Propertie, p.

enemy, who is here in peace under protection, may sue a bond ; ^^- ^"■) But an

aliter of one commorant in his own country. wtfo has^sudi
protection, must plead it. Faresl. 1 50. Sylvester's case. Ld. Rayra. 283. [But if alienage
simply be pleaded, it is not necessary to reply, that the plaintiff ia not an alien enemy. 2 Stra.
1082.]

[It hath been heretofore holden, that an alien enemy may Record v.
maintain an action in this country for the recovery of a right Bettenham,
claimed to be acquired in actual war; but that opinion hath been 3 Burr. 1734.
since over-ruled, and it hath been determined in the Exchequer ^^lack R. 563.
Chamber, that by the municipal law of this country no such sui t Blackburn
can be supported, Dougl.6i9.

Anthon v. Fisher, Dougl. Ad. 30.

An alien enemy, prisoner of war, is not entitled, under any Anon. 2 Black,
circumstances, to his discharge upon a habeas corpus.'] ^' *^^'**

II Whether an alien enemy born, who is a prisoner of war, can
maintain an action in the courts here, does not appear to have
been decided, though judges have expressed strong opinions in
the affirmative. In a case where the question was raised, no
judgment appears to have been given. But where a native of a Maria v. Hall,
state in amity with Great Britain was taken prisoner while 1 Taunt. 33.
serving on board an enemy's ship, and by the authority of the y B^nnat?ne
king's officer was put on board 2l British merchant ship, then i'bos. & Pull,
in want of hands, and did his duty like the rest of the crew on 163.
the voyage to Great Britain ; it was held, that he might main-
tain an action for wages as a seaman for the voyage. ||

[A foreigner is allowed to put in his answer to a bill in equity Simmonds v.
in his own language, but a sworn translation must be also filed ^^^"^i

-"•it. ?,«-*

Interrogatories for the examination of witnesses who are Lord Belmor^
foreigners must be in £«g//5^ / and being afterwards translated, Jgr'cf^ch"*
their answers must be translated by sworn interpreters.] r, 9o'.

N 4

(E) Of

18* ALIENS.

(E) Of pleading Alienage.

T F one born in Jersey, or elsewhere within the king's obedience,
Co Lit. 129. b. •■- brings a real action, and the tenant pleads that the demandant
47 alceb 98 '^ "" "^'^" \)oxn under the obedience of the French king, and
Leon. 78, 79. ' out of the ligeance of, 8^c. the demandant may reply, that he
C'arter, 50. was born at such a place in England^ within the king's alle-
Rast. Ent. 605. gjance, ^x. and such hath ever been the manner of pleading in
la) Q«.'lfthc such case, (fl)

best method would not be, to say, born within the king^s obedience, viz. at, &c. the venue laid
by the plaintiff in hiis declaration ?

7 Co. 1. 9. in ^n assize tempore Jac. 1. the defendant pleaded, that the

Lit. Rep. 26. plaintiff was born apud E. infra regnum Notice ac intra ligean-

tiam didi domini regis regni sui Scotia^ ac extra ligeantiam dicti

domini regis regni sui Anglice ; and this was holden no good

plea, because it referred ligeance and faith to England, and not

to the king.

Sid. 357. Free- In debt on an obligation, which was for payment of rent

man v. King, reserved by lease for years ; the defendant pleaded the 32 H. 8.

c. 16. and that he was an alien artificer, <^c.; the plaintiff replied

that he was no alien artificer ; but, having laid no place where he

was born, the replication was held bad.

Carth. 302. '^^^ defendant pleaded in abatement, that the plaintiff was an

Nicholas v. alien enemy, born in such a place in France ; the plaintiff replied

Powlct. But that he is indigena, and born at such a place in the kingdom

^'^s '^H ^"^ ^^ England, et non alienigena modo et forma prout, &c. et hoc

561. Asht. 11. P^^^^ ^^°^ inquiratur per patriam : upon demurrer to this repli-

the like repli- cation it was holden to be ill; for that the plaintiff" did not rely

cations. If the upon the first part of it, that he. was born in England, and so

clmclud d'h" *^°"*^1"^^ ^i^^ ^^ averment, that an issue might be taken by the

replication Other side, viz. that he was not born in England, and that this

with an aver- matter might be triable by a proper visne ; but here he hath put

ment only, the alien or not alien in issue, viz. non alietiigena modo et forma,

«^^^r^*^''*"^*^' which cannot be tried for want of a visne; and therefore judg-

non alienwcna, . -,11..,,,,,, J o

had been only "'^"* ^'^^ given that the bill should abate.

Mirplusage, and helped upon a general demurrer; so resolved, Garth. 265. Brodeck v. Briggs,
yide Comb. 212.

p^^^'^ooo Where alienage is pleaded in abatement, and the plaintiff'

per H^i C.J ^^Pl'^s indigena, he may either take issue, or conclude et hoc
paratus est verificare ; but if in bar, he must take issue; and this
is the reason of the difference in the two precedents in Rastal.
Bro. tiL Deni- If alienage be pleaded to an alien in league, it must be
Rit.\Iu.252. P^^^'l^^ in abatement or disability of the plaintiff; but if it
605. CarL 49. ^^ ^^ ^^ vWen enemy, it may be pleaded either in abatement or
Co. Lit. 129. in bar to the action, because it is forfeited to the king as a re-
a.b.(fl)Notto prisal for the damages committed by the dominion in enmity
be pleaded to a ^j^h him. (a)
personal action ^ '

without alleging the plaintiff to be an enemy. 2 Stra. 1082. See 12 Mod. 125. [In an action
by an alien enemy for a right acquired in actual war, the defendant, it seems, may avail him-
Ta Sni^ hwT*^^°u ^'f, ^'«"a§e without specially pleading it. Anthon v. Fisher, Dougl.
AO. JO.J pwhen the plaintiff u an alien enemy at the time of the cause of action arising,

this

AMBASSADORS. 185

this may be given in evidence on the general issue, or pleaded in bar; but when he became
so subsequently to the accruing of the cause of action, it only goes to his disability to
sue, and must be pleaded in abatement. Doug. 649. note 132. 6 Term R. 24. 15 East, 260.
3 Camp.R. 152. The courts will not in general allow the plea of alien enemy to be pleaded
with any other plea. 1 Bos. & Pull. 222. 2Bos.&Pull.72. 12East,206. loEast,326. And the
plea being disfavoured, must aver that the plaintiff was born in a foreign country at enmity with
this country, and came here without letters of safe conduct. 8 Term R. 166. If the plaintiff
being an alien amy at the commencement of the suit, afterwards in the course of it becomes an
alien enemy, and this appears on the record, judgment will be given that he cannot further
maintain his suit. De Bret. v. Papillon, 4 East, 502.1|

[Alienage cannot be pleaded to a scire facias on a judgment ; West v. Sut-
Ibr the plaintiff having been admitted to be able to recover judg- ^"' ^ ^°5"
ment, cannot be disabled from having execution upon it by mat-
ter which was precedent to it]

II And where the plaintiffs had become alien enemies since the Vanbrynen v.
verdict, the court refused on application to stay the judgment ^iVilson,9East,
and execution, saying, if the defendant had any remedy at law, ^^^*
he might avail himself of it. II

AMBASSADORS.

A N ambassador (a) is a person sent by one sovereign prince {b) ^^^ Difference
to another, to transact in the place of his sovereign such between am-
matters as relate to both states. The manner of appointing and bassador ordi-
receiving public ministers, their duty, power, and privileges, 8^c, nary and ex-
being chiefly regulated by the civil law, or law of nations, I must ]vfolloy" b7i. " '
refer to other books for those matters, and shall here only insert c. x. An
what seems most worthy of notice in our law books ; observing agent repre-
that our law herein pays the greatest regard to rules prescribed se^ts the affairs
by the civil law and the law of nations. ambassador

the grandeur of his master. Molloy, ibid, {b) By the law of nations, none under the quality
of a sovereign prince can send ambassadors. Ibid. And it is said by Lord Coke, that there
can be no ambassador without letters of credence from his sovereign to another that hath a
sovereign authority. 4 Inst. 153. But the electors and princes of the empire send or receive
ambassadors, touching matters which concern their own territories. Molloy, ibid. And so
the Hans towns, being free imperial cities, have the same regalia by prescription or grant.
Ibid. But a king deprived of his kingdom and royalty, hath lost his right of legation. Molloy,
bk. i. c. X. § 5. i7i margin. ||Grotius states the rule that none but stimmi imperii compotes
inter se can lawfully send ambassadors, but admits exceptions in the case of civil wars, when
a nation is so divided that it is doubtful where the jus imperii resides, or where two claimants
contend with doubtful right for the succession. De Jure B. et P. lib. ii. c. xviii. § ii. 3. ;
And Bynkershoek, in such cases, ascribes the power of sending embassies to that faction
which has the rei agendi potestas, and therefore joins with Grotius in approving the censure of
Tacitus, Histor. lib. iii. c. Ixxx. on the violence offered by Vespasian to the embassy of Fitelkusy
since V itcllius a.n6. t\\G senate then held the chief power of the state; — but had Vespasian
sent ambassadors to Vitellius they would, says Bynkershoek, have been only the messengers of
rebellious subjects, who have clearly no authority, according to the law of nations, to send
embassies to their sovereign, as he shews with reference to instances in modern history.
Bynk. Quasst. Jur. Pub. lib. ii. c. iii. A sovereign dc facto enjoys this right without reference

18C AMBASSADORS.

to his title. IbuL And this author extends it to municipalities and provinces having compe-
tency to transact those matters which their embassy concerns. He even sneers at the
punctilio of Queen Elizabeth in refusing to receive an epibassv from the Duke of Alba,
the object of the embassy being to obtain the restoration of a sum plundered. Jbid.
p 207 ; and see Wicquefort Ambassadeur, lib. i. § 2.1| If sent from a kmg or absolute
potentate, though in his letters of credence he is termed an agent or nuncius, yet he is an
ambassador or legate. 4 Inst. 153. Ambassadors were sent to the pope, being a temporal
prince, and also his ambassadors received here, who were sworn not to attempt any thing
prejudicial to the king or kingdom. 4 Inst. 156.

Hob. 78. 113, An ambassador cannot, as procurator, exhibit a bill in our
114. Don Die- courts for a certain number of his fellow subjects, without an
go Servienti authority from them ; for every procurator must sue in the name
Sprnd^kmn- ^ of the principal, and cannot be such without his allowance ; nay,
bassador, and the king cannot make a procurator for all his subjects, without
Sir Richard (heir consent, nor would a release, sentence or discharge against
Bmgley. ^^^^ ^ ^^^ ^^ ^ discharge against the principal : also the office

of an ambassador doth not imply a private procuration, but for
the public ; and not for a particular subject, otherwise than it
concerns the king and his ministers to protect him in foreign
kingdoms in nature of a negociation of state ; and therefore,
though he may prosecute and defend for a private subject at
the council-table, which is a court of state, yet when he comes
to settled courts he must observe the essential parts of their pro-
ceedings.
4 Inst. 152. I" ^^ bishop of Ross's case, ann. 13 Eliz. the questioi>being

Molloy, b. 1. - an legatuSi qui rehellionem contra principem ad quern legatus con-
0,10. $9. S.C. citas, legati privilegiis gaudeat, et non ut hostis pcenis subjaceat, it
cited, and said, ^^g resolved he had lost the privilege of an ambassador, and was
that ambas- i • ^ , • i ^ r &

sudors cannot, subject to punishment.

by the law of nations, be defended when they act against the state, or person of the king with
whom they reside; and vide 3 Bulst. 28. and Roll. Rep. 18S. in which last book, the king's
attorney makes a difference between a conspiracy to kill the king and other treasons com-
mitted by an ambassador. — — . |[0n the much contested question as to an ambassador's
criminal responsibility to the courts of the country where he resides, the authorities of our
common law are not quite in accordance with the writers on the law of nations, though the prac-
tice of this country has, in almost all instances, conformed to the principles laid down by the
latter. The jurists who treat of the^'zM gentium, with one consent allow to the government to
which the ambassador is sent, all such proceedings against him in case of his criminal machin-
ations against the state as are justified by principles of self-defence or preservation. If he
engages in hostile attempts with open force, he may be repelled with force as an open enemy,
and his life may be taken, if necessary, to suppress his plots. If he is detected in secret con-
spiracies, he may be arrested and examined, and his papers seized, and his person confined as
k)n| as the necessity of the case requires it. But when the danger and necessity are past,
or in cases of crimes not affecting the state (however atrocious), where such danger and
necessity never exist, these writers are unanimous in asserting the ambassador's immu-
nity from all proceedings for mere purposes of punishvient; for as Grotius expresses it,
" securiioi kgatorum utUitati qucs ex poena est pr<Eponderat :" besides that the deserved
punishment may be obtained through the medium of the ambassador's own sovereign, or if he
refuses it, may be a just cause of war. Grotius de Jure B. et P. lib. ii. c. xviii. de legatio-
num jure. Vattel, b. iv. c. vi., enforces the same principles by cogent reasonings drawn from
the necessity of an ambassador's general exemption from municipal law ; and Bynkershoek,
de Foro Legatorum, c. xvii., xviii., xix. ransacks ancient and modern history for examples
bearing on the question, which certainly shew the preponderating usage of nations, ancient and
modem, to be consistent with the principles of the above writers ; though some instances of
punishment are not wanting, as that mentioned by Livy. lib. xxv. c. vii. of the Tarentine envoys,
and by Sallust. Bell. Jugurth. c. 55. and others. On the other hand, among our own text
authorities. Lord Coke broadly asserts, (4 Inst. \ 53. post. p. 188.) that an ambassador may be
tried as a private alien for treason, felony, adultery, or any other crime against the law of nations
— a doctrme which would render him liable for all such offences against municipal law as are mala

AMBASSADORS. 18^

inse, including every criminal fraud. Lord Coke cites no authority for his position, which is quite
collateral to the case of Pallache, of which he is then treating. Sir Matthew Hale, 1 Hist.
PI. C. 99. expresses himself doubtfully as to an ambassador's liability to punishment as a traitor
for treasonable machinations, but "holds him clearly amenable for other capital offences, as
rape, murder, &c. on the technical ground that the indictment runs contri pacem regis only,
and not contra ligeanticB sius debitum. Foster is clear that, as to state crimes, ambassadors
are to be considered at worst but as enemies subject to the law of nations, never as traitors
subject to the municipal law, unless, perhaps, in case of attempts against the king's life
— a distinction also adopted by Blackstone, b. i. c. vii., upon the authority of a state-
ment of Sir Francis Bacon as counsel, in 1 Roll. Rep. 185. and State Tri. vol. ii. p. 881.
Foster, however, is clearly of the opinion of Lord Hale with respect to murder and other
offences. The only instance which appears in our books in accordance with these doc-
trines, (for Pallache's case, 4 Inst. 152, and 5 Bulst. 27. is no authority one way or the
other, since whether an ambassador or not (which was doubtful) his offence did not
amount to piracy, and therefore he was not triable,) is that of the Portuguese ambassador's
brother, Don Pantaleone de Sa, who was tried and beheaded for murder during the protec-
torate 1654. (See the case at length, Stat. Tri. v. 5. 462.) This person, as appears from
the account of Doctor Zouch one of the commissioners appointed to try hira (see the preface
to his tract Solutio qucestionis de Legati delinquentis competente Judicio, B Sta. Tri. 482.) was
not himself invested with any ambassadorial character, though Hume, v. vii. 237. erro-
neously states him to have been joined in the commission with his brother. The case is
not therefore an example of the punishment of an ambassador; though it must be ad-
mitted that, as part of the ambassador's retinue, the individual would, according to
Grotius, Vattel, and Bynkershoek, be entitled as a comes legati to the same immunity as the
ambassador himself, — and the threats of violence by which CVo7WM;e// compelled the ambas-
sador to deliver him up, were contrary to the express authority of Grotius, that a person
in the retinue of an ambassador committing the gravest delinquency ought only be de-
manded at his hands, but not taken by force. Lord Hale mentions the case in support
of his dpctrine above stated : — neither Foster nor Blackstone condescend to notice it.
Bynkershoek mentions the fact without comment, de Foro Legatorum, c. 17. Claraidon
calls it an " exemplary piece of justice," which it might be, and nevertheless be con-
trary to the voluntary law of nations. Hume, V. vii. 237. and Burnet, Hist, own Times,
vol. 1. consider it as a violation of that law; and though it appears to have been quoted by
the Emperor of Germany as a precedent to justify carrying off an offensive plenipotentiary
from a congress at Cologne (5 Sta. Tri. 486.), yet, perhaps, considering the period and cir-
cumstances of the case, and the weak condition of Portugal, which was then purchasing a
peace of Cromwell, it hardly affords a very authoritative decision even as to the responsibility
of an ambassador's attendant for an atrocious crime against natural law ; and as to the case of
an ambassador himself, or of a crime against the state, it clearly affords no precedent at all.
Vattel, ubi sup. § 1 24. mentions an instance from Sully's Memoirs, v. vi. c. 1 . of a French
gentleman in the suite of the Duke de Sully (then Marquis de Rony) ambassador in Eng'
land, who, having committed a murder, was tried by the ambassador and some gentlemen
of the embassy, and found guilty, and sentenced to lose his head, and afterwards delivered up
to the English for execution — a proceeding which Vattel appears to approve, since, though
he admits the right of trial, he pronounces an ambassador to have no power to execute a
criminal in the country where he officiates. The case of the Bishop of Ross in the text is
merely an opinion of the civilians consulted, for no judicial proceedings were taken against
the bishop, who was 'sent to the Tower, and afterwards ordered to depart the kingdom.
5 Sta. Tri. 501, 502. Similar instances of restraint and dismissal (but none of punishment)^
have occurred from the earliest periods of our history down to the seizure of the Count
Gyllcnberg the Swedish minister, and his papers in 1716 (see them collected, 5 Stat. Tri. 492.);
and they fall strictly within the principle of prevention, as stated above from the writers on
the law of nations. Even Cromwell himself, when his life was conspired against by the French
minister De JBas, who refused on the ground of privilege to answer interrogatories of the
council, contented himself with ordering the minister to depart the kingdom in forty-eight
iiours (see the case stated from Wicquefort and Thurloe in 5 Sta. Tri. 512.), as Queen Elixa-
beth had done in the case of a similar conspiracy. See Camden, Eliz. Ann. 1587.||

If A. is sent as ambassador of the king of Morocco to the Slates, 4 Inst. 152.

and by them accepted as an agent, and there being war betvi^een p^f,"^Tf ^ '"

the king of Morocco and the king o^ Spain, the king of Morocco bytheCh'S

makes a commission to A. to take SjJaniards, and their goods ; Master of the ]

and

188 AMBASSADORS.

Rolls, and the and the king of England grants him letters of safe conduct as a
Judge of the public minister, and the States license him to levy men, to furnish
Admiralty, up- gj^ipg^ ^.^, . ^nd there being a league between England and Spain
t°o"them byX and England and the States, and war between Spain and the
Lords of the States, A. takes at the Canaries a Spanish ship laden with goods.
Council upon and by stress of weather is driven to Plymouth, he shall not be
the prayer of ^^.j^j ^ ^ pirate here {a) ; for by the law of nations an ambas-
tSoMo^'"' saJor «"gl^t to be safe and sure in every place. (Z;)
proceed ajrainst him as a pirate upon the stat. 28 H, 8. c. 15. Roll. Rep. 175. S. C. cited.
5 Bulst. 27,28. S. C. cited, (a) But per Roll. Rep, it was agreed by the civilians, that
he ought to proceed civilithr for the goods, because in solo amid; and 3 Bulst. 29. A
suit beinf in the Court of Admiralty against several merchants that had bought goods, the
civilians held, because they were bought in solo amid, proceeding might be for them in
the Court of Admiralty ; and it is said, that accordingly the court denied a prohibition :
But, per 4 Inst. 154. though this was the opinion of some of the civilians in Palache's
case, yet the contrary had been resolved, 2 Jac. 1. ||(5) But Pallache's case seems to have
been decided on the ground that, whether he were an ambassador or not, his acts did not
amount to piracy, because there was enmity between his master the King of Morocco and the
kin* of Spain, and one enemy cannot be a felon for taking the goods of another enemy.||
4 Inst. 15-5. If a man that is banished is sent ambassador to the place from

|j(c) But it IS which he is banished, he cannot be detained or offended there, (c)
clear that the ^

sovereign of such individual might refuse to receive him as an envoy; and if he afterwards
came into the country, he might be dealt with as a subject. In France, the government
refuses to admit native subjects as ministers of foreign powers. Vattel, b. iv. c. viii. s. 112,;
and in 1681 the states-general oi Holland passed a decree, refusing to receive as ambassador
or minister any native subject, except on condition of his retaining his character of subject,
both as to civil and criminal jurisdiction. Bynkershoek, de Foro Legatorum, c. xi. And

1 believe the practice of the British government is against receiving native subjects in such
capacity; it seems they refused to receive Sir B. Thompson Count Romford, as minister
from the elector oi Bavaria. 5 Sta. Tri. 504, If a sovereign, however, does admit such sub-
ject as an envoy, and without any condition expressed, Vattel, ubi supra, considers that his
character of sulject is suspended, and that he is entitled to all the immunities of an am-
bassador.||

2 Vern. 317. A bill was exhibited in Chancery against one, then ambassador
l*ilkington v. at the court of Spain : an order was obtained, that all proceedings
Stanhope. should cease until his return from his embassy ; and, on motion to
was'beld trea- discharge the order, it was agreed on debate, that a protection
son to kill the lies for an ambassador, quia prqfectwnis, or quia moratwus, and
king's am- that at law he may cast an essoin for a year and a day, and may
^'Tnst'T ^e ^^^^^"^^^^^ renew it if occasion continues ; and the court ordered
Co. Lit. 130. t'^^ proceedings to stay for a year and a day, unless the defendant

should sooner return into England.
4 Inst. 153. It a foreign ambassador (being ^;ro-n\r) committeth a crime

Mollov, b. I which \s contra jus gentium, as treason, felony, adultery, <^c. he
Same rule ^°^^^ ^^^^ privilege and dignity of an ambassador, and may be
cited. Roll, punished here as any othr private alien, and is not to be re-
R, 175. Same manded to his sovereign but of courtesy, id)
rule agreed by

thcciviliaus. So,3Bulst.28. Hawk. P. C. 51. S. P. Post. Cr. L. 187,188. [In the case of the King
agamst Guerchy, the attorney general, under the direction of the Court of K. B., grantetl
a noli proscqxa on an indictment against the French ambassador for an attempt to assassinate
lA-D'Eon. It does not appear from the report whether this direction was given upon the
naked ground of the defendant's protection from his character as ambassador, or whether the
judgment of the court were not influenced by the special circumstances of the case, which
induced a suspicion that the prosecution wa"s a cross calumny upon the defendant, and
instituted and kept on foot merely for the purpose of defaming him. 1 Black. R. 545.]
11(a) See note on this subject, suprh^ p. 186.||

So,

AMBASSADORS. 189

So, upon contracts which are good Jure gentium, he must answer. 4 j^gj j^^

But in Molloy, b. i. c. x. § 16. it is said, that most certainly by the civil law, his moveables,
which are accounted an accession to his person, cannot be seized on as a pledge, or for pay-
ment of debt, though by leave of the king or state where he resides ; for all coercion ought to
be far from an ambassador, as well that which touches his necessaries as his person : if, there-
fore, he hath contracted a debt, he is to be called upon kindly ; and if he refuses payment,
letters of request are to go to his master, so that the same course may be taken with him as
witli debtors in another territory ; and notice is taken of the opinion of my Lord Coke, which
seems to the contrary; and 3 Bulstr. 28. it is agreed by the civilians, that the person of an
ambassador cannot be arrested. [An ejectment brought, and left at the house of the
ambassador, conceived no breach of privilege in the case of Mons. Colbert for York-house.
M. 28. Car, 2. B. R. Molloy, b. i. c. x. $ 15. in margin.] ||It is not very clear what Lord
Coke, in the passage in the text, intends by contracts good jure gentium. All the authorities
on the law of nations, and the almost universal practice of European states, pronounce public
ministers free from civil proceedings for debts and contracts, ,&c. in the ordinary courts,
unless in case of ministers trading. See Grotius de Jure B. et P. lib. ii. c. xviii. § 9, 10.
Bynkershoek de Foro Legatorum, ex. xiv. Vattel, b. iv. c. viii. And this was the rule of our
common law before the statute of Anne, which is only declaratory. Com. Dig. Ambassador (B).
Ca. temp. Talbot, 280.||

But if a thing be only malum 'prohibitum by act of parliament, 4 Inst. 155.

private law or custom of the realm, and not malum in se jure gen- Molloy, b. i .

tium. nee contra jus "entium, an ambassador residing here shall ^" ^' ^\
' u o ' o same rule

not be bound by it. cited. Roll.

R. 175. The same rule agreed by the civilians. |jLord Cohe, in the passage in the text, must,

it would seem, be understood to mean that an ambassador is not amenable to the ordinary

tribunals of the country for breach of mere positive institutions ; for that he is bound by them,

and held by the jus gentium to observe them, clearly appears from the writers on that law.

Vattel lays it down that his independency does not excuse him from conforming to the laws

and customs of the country in all his external actions, so far as they are unconnected with the

object of his mission and character; and he instances the cases of prohibitions to pass in a

carriage near a powder magazine, or over a bridge, or to inspect the fortifications of a town,

which an ambassador is bound to respect. Vattel, b. iv. c. vii. § 95.1|

And now by the 7 Ann. c. 12. it is declared, " that all writs ^ p^^^ ^ j^
" and processes that shall at any time be sued forth or prose- (qj a certifi-
*' cuted, whereby the person of any ambassador, or other public cate that the
" minister of any foreign prince or state, authorized and received person was a
*' as such by her majesty, her heirs or successors, or the do- n^^ooj^^^" '
** mestic servant of any such ambassador (a), or other public Barnes, 370.
" minister, may be arrested or imprisoned, or his or their goods On motion to
" or chattels [b) may be distrained, seized, or attached, shall be supersede a
" deemed and adjudged to be utterly null and void. t'his'^rtatute

the court held, that it was not necessary to shew that he actually lived in the house, but
that he must shew the nature of his office, that the court may judge of it; also that he is
not such a one as comes within the de!=cription of any of the statutes against bankrupts. Fitzgib.
200. 2Stra. 797. Ld.Raym. 1524. Ca. tem. Hardw. 3,4. 3 Burr. 1677. See 10 Mod. 4, 5.
[He must also swear to the actual performance of the service. 3 Burr. 1731. But where one
swore positively to an actual engagement as English secretary to the Bavarian minister, and to
the actual performance of that employment, the Court of K. B. thought themselves bound to
allow his privilege, though it appeared that he had formerly been a trader, and there were severtd
other suspicious circumstances. 3 Burr. 1478. Lord Mansfield was clear, that an officiating
land-waiter at the custom-house could never be esteemed a bona fide domestic of a foreign
minister. I Burr. 401. Nor can a purser of a man of war. 3 Wils. s.^. Nor a trader residing
at his own house, his supposed master being abroad. Barnes, 374. Nor can an ambassador
take one into his service for the purpose of screening him from his creditors. 3 Burr. 1676.
Therefore, the person claiming privilege must swear that he was in the service at the time of
the arrest. 4 Burr. 2015. Qu. Whether an ambassador can retain one in the character of
physician? Ibid. A secretary to a foreign minister is privileged, though his name be not
registered in the office of either of the secretaries of state, the statute requiring that only for
the purpose of proceeding against the parties criminally, 3 Term 11. 79. 4 Burr. 2017. S. P.

Therefore,

190 AMBASSADORS.

Therefore, though his name be not registered, the sherJiT must execute the process, notwith-
standing the production of a certificate. 1 Wils. 20.] jjThis last passage is unintelligible ; and
the report is nardly less so : the meaning appears to be, that if the party is not registered, the
iheriff should execute the process, since he cannot harm himself in so doing, (h) Where a servant
of an ambassador resided in a private house, not the ambassador's, and let out a part of it in
lodgin'»s, it was held that his goods in suoh house were not exempt from distress for poor's
rate, such goods being in no way necessary for the convenience of the ambassador. Novello
▼. Towgood, 1 Bam. & C. 554.\\

" Provided, that no merchant or other trader whatsoever

** within the description of any of the statutes against bankrupts,

*' who hath or shall put himself into the service of any such

" ambassador or public minister, shall have or take any manner

*' of benefit ; and that no person shall be proceeded against

*' as having arrested the servant of an ambassador or public

" minister, by virtue of this act, unless the name of such servant

1(c) If not ac- " b^ ^^^^ registered (c) in the office of one of the principal secre-

tualiy a ser- " taries of state, and by such secretary transmitted to the sheriffs

his name be u sheriffs or deputies ; who shall, upon the receipt thereof, hang

bnot within ** "P the same in some public place in their offices, whereto

the act. Fitzg. " all persons may resort and take copies thereof without fee or

soo.] « reward.

" The persons who, by suing out writs, Src violate this law,

** which is declared a public act, to be punished at the discre-

** tion of the two chief justices and lord chancellor, or any two

« of them."

Abr. Eq. 550. One protected by the Genoese ambassador brought a bill in

pi. 4. Good . Chancery, and was ordered, though after an answer put in (rf), to

Jjc^r Pasch ^^^ security to answer the costs, in the same manner as if he

1729. 2 Wil. were a foreigner {e) ; because, by the above statute, all processes

Rep.452. And against ambassadors and their servants are made void; so that

* \^^^ °l^^^ if the bill should be dismissed, no process could issue against

made by my ^^™'

Lord Cowpcr, after answer put in, Trin. 1709. between Barret and Buck, (d) But it has been
denied in the Exchequer, even before answer, where the bill w^as for an injunction to stay the
defendant's proceedings at law in ejectment, because the plaintiff was in a manner forced into
this court, (viz. the Exchequer,) and did not come in originally. Bunb. Rep. 272. pi. 349. If
the motion be before answer, the defendant will not be obliged to put one in, until the plaintiff
give bond with a surety to the senior six clerk not towards the cause in 40/. penalty for
answering costs. 2 Will. 452. pi. 142. Mosely, 175. pi. 89. (rf) A deposit in money will not
be permitted instead thereof. Bunb. Rep. 35. pi. 53.

Barbuit's [A consul, or any person acting in an office of that kind, it

S*b. 281 seems, is not entitled to privilege.

Ihid. llThe The privilege of a public minister is annexed to his situation ;

SmS?" pri^. •' *^ ^^^ privilege of the state that sends him, and not that of the
lege from ar-' Individual : he cannot therefore wave it, or forfeit it, by becom-
r«ta« a public »ng a trader, <§-c.]

minister, was discussed in Marshal v. Critico, 9 East, 447. and Clarke v. Critico, 1 Taunt.
106. ; but It was not necessary to decide the point. It was however determined in Vieash v.
Becker, 3 Maule & S. 884., on the authority of Vattel and Wicquefort, that he is not a public
Bimister entitled to privilege from arrest on mesne process. The authority of Bynkershoek
de Foro Legatorum «. 10. accords with this decisionlU

[ 191 ]
AMENDMENT AND JEOFAIL.

(A) Of Amendments at Common Law.

(B) The several Statutes of Amendment and Jeofail.

the King, or to any Criminal Proceedings.

(D) In what Cases the Proceedings in Civil Causes

are amendable, and the Manner thereof) as by
amending one Part of the Record by another :
and herein

1. Of the Original Writ and Process.

2. Of the Imparlance Roll.

3. Of the Plea Roll.

4. Of the Jury, Process^ and Nisi Prius Roll.
6. Of the Verdict.

(E) What Defects may be amended, or are aided after

Verdict : and herein

1. Of the Want of sufficient Certainty in the Plaintiff^ s De-

claration in not setting forth his Cause.

2. Of Reptignancy and Surplusage,

3. Of Insufficiencxf in the Defendant^ Bar.

4. Of immaierial and informal Issues.

(F) Of amending the Judgment.

(G) At what Time the Amendment must be made ;

and therein of Records removed out of inferior

Courts, and the paying of Costs.
fH) Where Records defaced by Design or Accident

will be set right and amended.
[(I) Of Amendments in Equity.]

(A) Of Amendments at Common Law.

AT common law there was but little room for am^idments, Britt.s. eCo.

as appears by the several statutes oi amendments andjeofailSi iS6. (o) This

and likewise by the constitution of the courts ; for, says Britton, ordinance of

the

192

AMENDMENT AND JEOFAIL.

E. 1. was so

strictly ob-
served, that
when Cli.
Just. Ingham,
in his reign,
moved with

the judges are to record the parols deduced before them in judg-
ment; also, says he, E. 1. (a) granted to his justices to record
the pleas pleaded before them, but they are not to erase their re-
cords, nor amend them, nor record against their enrolment, nor
any way suffer their records to be a warrant to justify their own

misdoings,
compassion ° j , , .

for tne circumstances of a poor man who was fined 15s. 4d. erased the record, and made it
6t. 8rf^ he was fined 800 marks. 4 Inst. 255.

9H.7. I6.b. Hence it appears, that regularly at common law, neither false

4H.6. i6.b. Xxiiinj the omission of a word, syllable or letter, or other de-
8 Co. 157. ^^^j. ^^ variance from the approved and legal foims, were
amendable.

But out of this general rule there are the following excep-
tions: I. All mistakes were amendable the same term, be-
cause it is a roll of that term, and so in the breast of the court
during the whole term, and then a new roll might be brought in
the cause, and consequently the same roll may be amended.

That part of the count which records the writ was amendable
at common law, though of a subsequent term; because the re-
cording of the writ was surplusage, and the judges were not to
record against a former record.

2 Hawk. P. C.

192.

« Co. 1 57.

Hlackinore's

case.

8 Co. 156. b.
7 H.6. 45.
FWeCro.Car.
144.Sand.517.

(In penal ac-
tions, while the proceedings are in paper, mistakes are amendable at common law ; and it has
been done where several terms had elapsed since the commencement of the suit, and issue had
been ioined. 2 Burr. 1099. So where the record had gone down to trial, and been afterwards
withctrawn. 5 Burr. 2833.] But this is a matter of discretion in the court, and a similar appH-
catioD has been refused. 2 Term R. 707.] ||There is no difference as to amending at common
law between penal and other actions; 1 Stra. 137. 2Stra. 1227. 1 Wils. 256. 1 Burr. 402.
2 Ker. 82. 3 Maule & S. 450. Nor between civil and criminal cases ; 1 Salk. 51. Ld. Raym.
1068. 6 Mod. 285. 4East, 175. Tidd, 711, 712.(9th edit.)||

S H. 4. 4.

An essoin, if the plaintifPs name were mistaken, or if it was
made as guardian, when there was no guardian in the writ, was
amendable at common law, because such an essoin was contrary
to the writ, and consequently an enrolment of it would contradict
a former writ.

Continuances could be amended at common law; as where
A. brought a bill against B. who vouched C. who entered into
warranty, and pleaded to issue; a venire Jacias, and a jurat, inter
A. and B. was put in, which jurat, ought to have been between
A. and C. ; and because it appeared by the record of the issue,
and the award of the venire facias, and the venire itself, that the
684"strari39. j^^^t' ought to have been between A. and C. this was was amend-
s Stra. 734. ed, otherwise it would have been an enrolment against a former

record.
8 Co. 156. In the case of the king, the writ was amendable where the

^^q/""' ^^^ ^^^^^ was in the form, as in a quare impedit brought by the
king, the writ was presentere instead of presentare ; and it was
amended ; for it could not be intended that the original institu-
tion of the court was to destroy or lessen the prerogative of the
king.

Tidd'a Prac. II At common law, when the proceedings were ore tenus at the

<'9J(9^ edit.) bar of the court, if any error was perceived in them, it was presently
theredted a"iended ; afterwards, when the pleadings came to be inpaper, it

was

Fitz- Amend-
ment, 7. 61.
Bro. Amend-
ment, 26.

8 Co. 1 5&. b.
Roll. Abr. 899
Vide for this
Cro.Eliz. 619
Stile, 339.
Yelv. 1 SS.
2 Mod. 3 16.
12 Mod. 8

(A) Of Amendments at Common Law, IDS

was Uiought reasonable, that the parties should have the like in-
(liil<reiice ; and hence it is now settled, that whilst the proceedings
are in paper, and before they are entered of record, the court or
a judge will amend the declaration, plea, replication, Sfc. in form
or substance, on proper and equitable terms ; and declarations in
actions on bail-bonds may be amended (in the Common Pleas) ♦
as well as any others. Amendments are commonly made by sum-
mons and order at a judge's chambers, and now by a judge at
Nisi Prills, or on the Circuit, by virtue of 1 G. 4. c. 55. § 5.

The declaration may be amended even after a plea in abate- j jg^^j go
ment of misnomer. i Ld. Raym.

669. 7 Term R. 698. 3Maule&S.450. 2 Chitt. R- 8. 28

Or of the statute of additions. 2 g^^^^ ^^^^

9 Ld. Raym. 1472.; but see 1 Salk. 50. 2 Ld.Raym. 869.

Or of nul tiel record. i -^ji^ g^^

7 Term R. 447.

Or after verdict, by increasing the damages according to the 7TermR.i32.
truth as found by the jury, a new trial being granted to enable 2Chitt.R.2T.
the defendant to resist the enlarged demand.

So after a nonsuit was set aside in prohibition, the plaintiff Franklin v
had leave to amend the suggestion. Holmes,

Tidd's Pract. 697.

And the Common Pleas has permitted a new trial, and amend- » Taunt, si.

ment of the record after a nonsuit for a variance, in an unde- ^^^^- & P"'»-

fended causP ^*^- ^ ^^'■^

lenaea cause. ^^^ ^ g.^^^^ ^

A. 896.; but see 5 Moo. 164. 2 Bro. & B. 397. S. C. contrh.

Though in the King's Bench formerly the plaintiff was not Tidd's Prac.
allowed to add a new count (or a new cause of action, which was <^9M9th edit.)
considered the same,) to his declaration, after plea pleaded, or there cited,
after the second term from the return of the writ, (that being the
time within which he is bound to declare,) it is now ttie prac-
tice in the King's Bench to permit a new count to be added
after the end of the second term, when the cause of action is
substantially the same, but not if different. And though formerly
the Common Pleas would not allow new counts to be added after
the end of the second term, yet the rule is now the same as in
the King's Bench, — that they may be added, provided they con-
tain a fresh cause of action.

But the Common Pleas will not allow such an amendment to
affect bail discharged ; and in an action against a sheriff's officer 6 Taunt. 483.
for extortion on one statute, they refused to allow the addition ^ ^oo. 350.
of counts on another statute for the same offence.

But admitted the declaration to be amended from asstmpsil 6 Taunt. 419.
to debt, in an action for money lost by stock-jobbing on the g^^'^^'^a'^/^'
statute 7 G. 2. c. 8. toamendmems

in real actions, see Tidd's Prac. 755. (8th edit.), and of Fines and Recoveries, see ibid., and tit.
Fines and Recoveries, Vol. III.

Before plea in general no costs are payable on amending the
declaration, except costs of .he application; and in the King's
Bench the declaration may be amended in matter ofjbrm after

Vol. I. O the

19i AMENDMENT AND JEOFAIL. fij

(a)Ti(U|, 707. the general issue pleaded, and before entry, without paying
(9tli edit.) costs, or giving an imparlance, (a) But if the amendment be in
So" l!St^^° matter of substance, or after tlie general issue is entered, or a
1 55. Tidil, special plea pleaded, the plaintiff" must pay costs, or give an
707. imparlance at the election of the defendant. ((?»)

TiJd, 707. In the Common Pleas it is a rule, that before the declaration

'?.Stra.950. is actually entered, the plaintiff' may amend it, paying costs, or
giving an imparlance at his election, by order of a judge or pro-
thonotary ; and even after it is entered, if the amendment be but
a small matter that does not deface the roll, it is amendable, be-
fore issue or demurrer entered, by rule of court, upon payment
of costs, and liberty to plead with a new or further imparlance.
(tYsTaunt.si. When amendments are made at the trial, they are made with-
Tidd, 70S. out costs, if the action is to be defended on the merits, {c) On
Ry. & Moo. amending the declaration in the King's Bench, after plea plead-
fJ^T'dd "08 ^'^' ^^^^ defendant is at liberty to plead de novo (if his case require
(e) s'sal'k.sn, it) in two days after amendment made, and payment of costs {d) ;
518. 520. and if a rule to plead has been entered the same term, though

®!?!f^*"lV ^'^' before the amendment, it is sufficient, otherwise a new rule must

a Chitt.R.332. u * J / \
be entered, (e)

(g) 2 Black. R. But in the Common Pleas the defendant is entitled, in all
785. Tidd, cases on amendment of the declaration, to a new four-day rule
^°^' to plead {g)f and he may plead de novo, if he has occasion, but he

(A) Barnes, 275. j|g j^qj. obliged to vary his first defence, (h)

(i) 1 Wils. 223. ^^^^ reason for not permitting a new count or right of action
Barnes, 22. to be added after the second term, being that the plaintiff" is

1 H. Black. obliged to declare within two terms, does not apply to pleas, re-
f^^' /„ plications, Sfc. ; and they therefore may in general be amended

2 Chitt. R. 28. ^^ ^"y time, so long as they are in paper, {i)
6 Barn. & Aid. 696. Tidd, 709. (9th edit.)

(i)Ld.Raj'm. After a demurrer, the courts would not formerly give leave to
510. 668.679 amend without consent of the adverse party, (/r) But it is now

1 Salk. 50. settled, that after demurrer, or joinder in demurrer, either party
Gilb C P m. ^^ ^^ liberty to amend while the proceedings are in paper (Z), and
(to) i Barnard. ^^^^ ^^er the proceedings are entered on record, and the de-
K.B. 213. 220. murrer has been argued, the courts will give leave to amend,
^' w^c;' ^' where the justice of the case requires it, upon payment of costs, (m)
402 (5th"edit ) ^"'' ^" '^^ Common Pleas, after a party has once amended on

2 Stra. 735. demurrer, the court will not give him leave to amend again on a
954. 976. second demurrer, {d) On similar grounds, the courts will some-
sCh^t^R^ times give a party leave to withdraw his demurrer after argu-
292. Tidd nient, and plead or reply de novo, to let in a trial of the merits (w) ;
710. (d) 2'h. but, in such cases, they will always take care that the opposite
Black. 561. ; party is not delayed or prejudiced, (o) The giving or withhold-
s^TaSt 515 ^"^ ^^^ ^^ withdraw demurrer is entirely discretionary in the
2Mw).566. court, and they refused it to the plaintiff" in an action against
(n)Dougl.385. bail, whom they are inclined to favour. (j))\\

452. lKcn.3S5. Say. R. 316.; and sec 2 Chitt. R. 5. (o) 2 Burr. 756. 1 East, 372. (jo) Say.
K.n6. 1 East, 135. 5Pricc, 412. 7Dow. &Ry.41. Tidd, 710, 711.

(B) The

(B) The several Statutes of Amendment and JeofaiU 195

(B) The several Statutes of Amendment and Jeofail. •

nPHE tying down the courts so strictly not to alter their re-
cords after the first term was found very inconvenient, and
many judgments were reversed by the misprison of clerks, ^c.
wherefore it was enacted.

By 14 Ed. 3. c. 6. " that by the misprision of a clerk in any hE. s. c. 6.
" place wheresoever it be, no process shall be annulled or dis- («) The judges
" continued by mistakinsr in writing (a) one syllable or one construed this

o\' J ^ ^ statute so la*

" letter too much or too little ; but as soon as the thing is per- vourably for"

" ceived by challenge of the party, or in other manner, it shall the suitors,

" be hastily amended in due form, without ffivins advantage that they ex-

" to the party that challengeth the same because of such mis- '^^""f" **_fo a
,j • . S, "^ ^ word. 8 Co.

P»*'sion. 158^ ^ j3^j

they were not agreed whether they could make these amendments as well after judgment as
before, 8 Co. 157. b., which occasioned the 9 H. 5. c. 4., by which it is declared, that the judges
shall have the same power as well after as before judgment, as long as the record or process is
before them; and this statute is confirmed by 4 H.6. c. 5. with an exception that it shall not
extend to process on outlawry, or to records or processes in Wales. But according to 2 Sand.
40. this last exception, and the like exception in 8 H. 6. c. 15. seem to be annulled by the sta-
tute of 27 H. 8. c. 26. by which it is enacted, that the laws of England shall be used, practised,
and executed in Wales.

Though these statutes gave the judges a greater power than 8 Co. 157. a.
they had before, yet it was found that they were too much An original, or
cramped, having authority to amend nothing but processes, which nature^hereof
they did not construe in a large signification, so as to compre- not included
hend the whole proceedings, but confined it to the mesne process within the
and jury process : wherefore to enlarge the authority of the ^^°^^ process,
courts,

By the 8 H. 6. c. 12. it is enacted, "that for error assigned eH. 6. c. 12.
" in any records, process, or warrant of attorney, original writ, 8 Mod. 3i4.
" or judicial panel or return, by razing or interlining, or by 12 Mod. 523,
" addition, subtraction, or diminution of words, letters, titles, -Kajm. 65.
" 8,-c. no judgment or record shall be reversed or annulled,
*' but the judges, in any record, process, word, plea, warrant of
" attorney, writ, panel or return in affirmance of judgment, may
** amend all that which to them seems to be the misprision
" of the clerk, (except appeals, indictments of treason, felony
" and outlawries of the same, and the substance of the proper
" names, sirnames and additions left out in originals and exi-
" gents, contrary to the 1 H. 5. c. 5. and other writs containing
" proclamation ;) and if certified defective, the parties in affirm-
*' ance of judgment may allege the variance between the re-
" cord and certificate, and if found and certified it shall be
" amended."

By the 8 H. 6. c. 15. " the judges in any records or processes 8 H. 6. c. 15.
" before them, by error or otherwise, or in returns of sheriflfs,
" coroners, bailiffs of franchise? or others, may amend the mis-
" prision of the clerks of the courts, or of the sheriffs, coroners,
" their clerks and other officers whatsoever, in writing a letter
" or syllable too much or too little.'*

02 As

196

AMENDMENT AND JEOFAIL. "Al

H(rt)The above As these statutes {a) extended only to what the justices should
are strictly interj^ret the misprision of their clerks arid other officers, it was
speaking the found, by experience, that many just causes were overthrown

amcndmen?r ^""^ '^''^"' °^ ^^^^\ "°' ^^"^^^^ ^^ ^"^ ^^ ^'^"^^^ statutes, though
the rest coin- they were good in substance : wherefore, for further rehef of
inencing with suitors,
52 H. 8. c. SO.

are statutes of jeofails. 1 Saik.31. They extend to penal as well as other actions. 2 Stra.
1227. Dougl. 114. 1 Marsh. ISO. 2 Chitt. R. 25. ; but not to criminal cases. lSalk.51.
2 Ld. Rayin. 1307.; nor as it should seem to process in inferior courts. Willes. 122. ; but see
Mr. Durnford's note. Ibid., and Tidd, 712.||

32 H.8. c. 30. The 32 H. c. 30. enacts, " that if {b) any issue be (c) tried (r/)

On this statute « by the oath of twelve men, for the {e) party plaintiff or de-

a careful and « ^andant, Of for the party tenant or defendant, in any courts

has the follow- " ^^ record, judgment shall be given, any mispleading, lack of

ingnotes.rufc " colour, insufficient pleading, or jeofail, any miscontinuance

Danv. Abr. « or {g) [h) (/) [k) discontinuance or (/) misconveying of {m) [n)

352. (p) But « process, misioining of the issue (o), lack of warrant of attorney

vet Bn 1SSU6 'JO^ . • * *^

upon the vi et *' o^ the party {p) against whom the issue shall be tried, or other
armis is not " negligence of the parties, their counsellors, or attornies, had
within the act; " or made to the contrary thereof notwithstanding; and the
one^^oined " judgment shall stand according to the said verdict, without
upon the spe- reversal.

cial matter alleged. Cro. Jac. 599., and vide Sand. 81, 82. (c) But if in replevin the plaintiff
is nonsuit after evidence, and the jury assess damages for the avowant, this is no trial within the
act; for the inquiry of the jury is only in nature of an office of inquest. Cro. Eliz. 339. ad-
judged, 412. adjudged, and vide Gouls. 49. Hob. 69. (d) So that an issue upon md tiel record
IS not within the act. 11 Co. 8. a. Cro. Jac. 304. (e) In trespass against A. and B., J. pleads
not guilty, and B, confesses the action, and a writ of enquiry is awarded upon the roll, but after
quoad B. there is no continuance entered, and after the issue is found for the plaintiff, admit-
ting there is a discontinuance qtioad B., yet it is aided by the statute ; for B. was party to the
original, and is privy to the verdict, being liable to the damages. Sir John Haydon's case,
1 1 Co. 6.b. adjudged. Roll. R. 31. adjudged, and vide Cro. Jac. 304., and vide Cro. Car. 313. —
But an issue between the demandant and vouchee is not within the act. And Kelw. 207. b.
5 Co. 36. b. 11 Co. 6. b. ; butter Hob. 281. this opinion is questioned, it not being said party
to the original, (g) If as to part the defendant joins issue, but says nothing as to the rest, and
this issue is found for the plaintiff, he shall have judgment. Gomersal and Gomersal, 1 1 Co, 6.b.
2 Leon. 194. Godb. 55. So 2 Roll. R. 161. Cro. Jac. 353. Hob. 187. 3 Lev. 59. ; and vide
Gouls. 109. Bulstr. 25. Cart. 51. — But if the matter is pleaded to the whole, though in fact
but m answer to part, this is a bad plea, and not helped by the statute. Hardr. 331. (h) This
extends as well to those on the part of the plaintiff as on the part of the defendant. 2 Roll.
K. 161. (t) Discontinuances after, as well as those before, verdict are within this act. Cro.
Ehz. 489. Cro. Jac. 528. ; and vide Cro. Car. 256. Cro. Jac. 211. Ci o. Eliz. 320. (k) Dis-
contmuances are helped by tlie statute, but not imperfect verdicts. 2 Leon. 1 96. Cro. Eliz.
^^Z" °^'^:^^' 5 Lev. 55. (I) But if upon an information of usury the court awards a
subpoena against the defendant, this is not a misconveying, but a disorderly process, and not
aided by the statute. Topliff and Waller, And. 48. adjudged. Kelw. 2 14. adjudged, and there
said this 13 no more helped by the statute than if in ejectment the court should award sl petit
cape, or in a real action a distress or attachment ; for such disorders were never intended to be

place, &c. were not aided by this statute. r«fc Cro. Eliz. 468. Gouls. 58. Winch. 69. 4 Leon.
85. LT0.Jac.647. Lit. R. 365. Moor, 91. pi. 212. Kelw. 212. 5 Co. 56. b. {m) But if
tnere De any delect in an original, or in the return thereof, it is not helped by this act. Kelw.
f \irf { '^' ^"^ i^ ^ dutringas is awarded where it should be an habeas corpora. Savil. 37.
W ytac Leon. 175. Cro. Eliz. 145. 153. where the entry was, that the defendant obtulit se
per Utgguu attor. tuum, without shewing his christian name; and it was argue<l that it was

helped

(B) Tiie several Staliiies of Amendment and JeqfaU, 197

helped by this statute; and in Cro. Eliz. 15.5., it was said, that if there were any warrant of
attorney, and his name appears, then it may be amended by it. But for this vide Roll. Abr.
289. Leon. 175.; and vide 18 Eliz. c 14., by which a provision is made against the want of
any warrant of attorney, {p) But if the judgment is not given upon the verdict, it is not
within the act; as in debt against an heir uj on the bond of his ancestor, he pleads riens per
descent, except twenty acres in D., and the plaintiff" replies he hath more in 8., upon which
they are at issue ; and it is found for the defendant, but the plaintiiF takes judgrneut upon the
confession of the assets. Molineux and Molineux, Yelv. 169., reversed by reason of a discon-
tinuance. Cro. Jac. 256. ; reversed accordingly, and said the statute must be intended where
the verdict is the occasion of the judgment; and vide Cro. Jac. 211. Cro. Eliz. 359. 412.
[N. B. This last point was determined on the statute of 18 Eliz. c 14.]

This statute, though much more extensive than the others,
and though it very much enlarged the authority of the judges in
amendments in mistakes, yet it remedied no omission but one,
which was the party's own neglect in not filing his warrant,
which should not after verdict prejudice the right of the party
that had prevailed ; therefore to remedy the omissions which
the prevailing party might have been guilty of, as well as the
other side.

By the 18 Eliz. c. 14. it is enacted, " that after verdict given is Eliz. c. 14.
*' in any action, suit, bill, plaint, or demand in any court of (a) But if in
*' record, judgment (a) thereupon shall not be stayed or re- trespass
*' versed for want of form touching false Latin or variance from ^^ ^ j' ''
" the register, or [b) other faidts in form, in any writ original pleads' not ,
" or judicial, count, declaration, plaint, bill, suitor demand; guilty, and it is
" or for (c) (d) want of any writ (<?) original or iudicial, or found for him,
tc \ c r \ n\ ' ' c \ / -N • ax • ,. I but agauist the

" by reason or (g) any {/i) imperrect or (?) insulticient return other two

" of any sheriff' or other officer, or for want of any warrant of there is ju'dg-
*' attorney (k), or for any fliult in process, upon or after any ment by de-

*' aid prier and voucher." ^""1^' the want

^ . 01 an origmal

may be assigned for error ; for the verdict being found for A. he is out of the case, and it is as
if the action had been brought agaiuot the other two only ; but if the verdict had been for the
plaintiff*, the want of the original quoad the other had been cured. 1 Lev. 210. (b) But the omis-
sion of vi et armis in a declaration of trespass is substance, because that is the inducement for
the king's fine. Cro. Car. 407. March, 140. Cro. Jac. 445. 526. 556. ; but t)2f?e Cro. Jac. 130.
2 Roll. R. 285. — So is the assignment of u breach upon a recognizance for good behaviour.
Cro. Jac. 412. (c) Leon. 30, 51. Fw/^ where the original was determined and not revived,
(rf) An ill writ in substance, or a good writ which warrants not the declaration, is not aided by
the statute. Cro. Eliz. 722. Gouls. 126. Yelv. 108. 209. Sid. 84. 5 Co. 37. b. 5 Bulstr. 224.
Roll.R. 452. — When the variance is such that it shall be taken as no original. Cro. Eliz. 204.
Hob. 251. Cro. Jac. 654, 655, Cro. Car. 327. Cro. Eliz. 286. 3 Mod. 156. 10 Mod. 318.
568. 1 1 Mod. 68. pi. .3. 171.250.240. 12 Mod. 235. Fitzg. 96. 2 Roll. R. 382. 5 Co. 37. b.
— But not so where the vicious writ is certified to be the writ upon which the proceedings
were, and that there is no other. ' Cro. Jac. 185. 479. 664. 675. Palm. 428. Brown. 96, 97.
Cro. Car. 272. 28 1. Jones, 304. Latch. 1 1 6. Yelv. 109. — But where it appears there was
a good original, no averment shall be taken that the proceedings were on the vicious one.
Cro. Jac. 597. Palm. 428. — And in ejectment, where the declaration recited the original to be
summwtitus est, there being none upon the file, the court would not intend a vicious one; but
that there was a good one, which is lost ; and that the plaintiff''s clerk mistook in the recital
thereof. Redman and Edolph. Sand. 317. JlNo advantage can now be taken of a variance
between the original and the declaration, for the court will not grant oyer of the original,
(Ford v. Burnham, Barnes, 340. Boats v; Edwards, Doug. 227.); nor will they set aside pro-
ceedings for irregularity on the ground of such variance. Spalding v. Mure, 6 Term R. 365.
And as to a writ of error for a defective original, the Master of the Rolls will grant a new
original or order an amendment. Carr v. Shaw, 7 Term R. 299. Deshons v. Head, 7 East,
583. Murray v. llubbart, 1 Bos. & Pull. 645. Gray v. Sidniff", 5 Bos. & Pull. f;45. 1 Saund.
517. a, b. (5l1i edit.)|| So the want of a venire, distringas, tj-c. is aided, but not a vicious one ;
and where a vicious one shall be taken as one, vide Cro. Eliz. 467. Owen, 59. Moor, 465.

O 3 Noy,

198 AMENDMENT AND JEOFAIL.

Not S7. Moor, 684. pL 944.; and vide Cro.Eliz. 215. 257. 359. 422. 435. 781. Cro. Jac-
65 162.396. Cro. Car. 90. Moor, 402. pi. 535. 623. pi. 852. 696. pi. 967. Godb. 194.
Leon. 329. Bul8t.l30, 131. sBuUuiSO. Brownl. 78. 97. Yelv. 69. Roll. R. 22. Stile,
8 483. March, 26. 2 Roll. R. 285. MThe want of a bill on the file, which is in the nature
of an original, is aided by the eauity of this act. Hob. 130. 134. 264. 282. Jones, 304. Cro.
Car. 282. Stile, 91. ; and Cro. Jac. 109. to the contrary is not law. — Qucere of the want of a
plaint in inferior courts ; but, however, an erroneous plaint is not helped. Cro. Jac. 108, 109.
Stile 115. Roll. R.338. (g) But if there be no return, as if the writ be album breve, or the
name of the sheriff not indorsed, this is not helped. Roll. R. 295. 5 Co. 41. Cro. Eliz. 310.
509. Yelv. 110. Cro. Jac. 188, 189. (h) Vide Stile, 91. 2R0II.R.247. In the return of the
venire, the words quUibet juratorum per plegiat. were wanting; and Cro. Jac. 534., per curiam,
It was held not as a blank or no return, but as an insufficient one, and helped. 2 Roll. R. 87.
adjudged, because by the appearance of the jurors it was salved, and said it was not like Dr.
Hussey's case, where pledges where wanting upon an original, which vide 3 Bulst. 275, 276, &c.

Roll. R. 445 447. Cro. Jac. 414., where it is said, that not finding pledges upon an original

is merely the neglect of the party, and so not helped. — If a venire is awarded to the coro-
ners and returned by two of them only; whereas at the time of the award and return thereof,
there were two more ; this is only a mis-return and aided. Lamb and Wiseman, Cro. Jac. 383.
adjud<Ted. Hob. 70. adjudged; and yet if one sheriff of London makes a return without the
otner^this is not helped, being no return at all; for they make but one officer, and the court
knows that in one sheriff there is two persons. Hob. 70. Qm. Of this reason ? (i) Upon the
return of a venire de viedietale linguce, it did not appear which were denizens, and which aliens.
Cro. Eliz. 841. per curiam. It is an insufficient return, and aided by the statute. — Upon the
ccmre twenty-three only were returned, but the habeas corpora was awarded against the twenty-
three and A., and eleven of the other and A. were sworn, and tried the cause. Fines and
North, Jones, 302. adjudged, it was not helped ; for A. was not returned by the sheriff. Cro.
Car. 278. 5 Co. 36, b. 37. a. Cro. Eliz. 1 94. Brownl. 274. Jones, 557.; and vide Sid. 66.
— So if the trial had been by eleven of the twenty-three, and one of the tales de cireumstan-
tibus. Sankill and Stocker, Cro. Car. 223. adjudged per curiam cont. Croke. Jones, 245. ; but
vide Brownl. 274., where it was adjudged according to the opinion of CroJce. Vide Latch, 54.
But if twenty-five are returned, and the twenty-fifth is sworn, and tries the cause, it is not
helped, because a mis-trial. Cro. Jac. 647. ; but if tried by twelve of the other, it is helped.
Cro. Jac. 647. This was before forty-eight were returned on the panel, {k) In a scire facias
upon a recognizance against th« heirs and ter-tenants of the conusor, the sheriff returns J. S.
ter-tenant, but says nothing as to the heir, and J. S. pleads to issue, and it is found against him.
Cro. Car. 295. adjudged by three judges against Croke, that quoad the heir, there being no
return, it is not helped by the statute; but, per Croke, the defendant having pleaded to issue,
and that being found against him, he shall not now take advantage of the heir's not' being
returned summoned ; and Cro. Car. 512, 315. it was adjudged for the plaintiff) because quoad
the heir, it was only a discontinuance, which is aided by the 32 H. 8. c. 30. Jones, 319.
adjudged. \\{k) And a variance in the name of the plaintiff between the warrant of attorney
and the declaration, is no ground of error. De Tastet v. Rucker, 3 Bro. & Bing. 65.||

2 Sand. 258. These statutes extended only to the courts above, but the

subsequent statutes extend to all courts of record, and remedy
several defects and omissions not included in the former.
21 Jac. I.e. 13. By the 21 Jac. 1. c. 13. it is enacted, "that after verdict
(rt)Sid.6i. It for plaintiff or demandant, defendant or tenant, baily in
(ft) Cro. Car. « • 1 • • -i ^1 • ^ •

17.162.284. assize, vouchee, praiee m aid, or tenant by receipt, in any

480. Jones, " action, suit, bill, plaint or demand, in any court of record,
395. Stile, " judgment thereupon shall not be stayed or reversed for any
Ua^Tn°67^ " variance, in form only, between the original or bill and the de-
(c)This statute " claration, plaint and demand, or for lack of the averment of any
aids not, un- " life («), so it be proved the person living, or because the venire,
less the venue " habeas corpora or distringas was awarded to a wrong officer
sevcrarSces " "*■*"" ""^ insufficient suggestion, or {h) for that the visne is
and one of * " '" (^^ some part mis-awarded, or sued out of more or fewer
those places is " places than it ought to be (</), so as some one place be right
truly named. « named, or for mis-naming any of the jurors in surname or
Sid. 20.— But « addition {e\ in any of the writs, or returns thereof, so as they

« be

(B) The several Statutes of Amendment and Jeofail, 199

** be proved to be the same as were meant to be returned ; or for if it arises
" that there is no return upon any of the writs, so as a panel j*^'" ^^^u „i
*' be returned and annexed thereto ; or for that the sheriff or in several "
" other officer's name is not set to the return of such writ, so as counties, and
" it appear by proof the writ was returned by tiim ; or for that ^^ '^ tried by
" the plaintiff' in ejectment (^), or other personal action, being hef, i o'l"*
" under age, appeared by attorney, and the verdict passed for 122. per Hale.
" him." (d)Bytheopil

nion of" the
greater part of the judges, where, by particular custom, a trial was to be de vicinet. of the four
wards next adjoining, and the venire is awarded de vicinet. of two of them only, it is helped by
the statute. 2 Sand. 258. But Sanders dubitavil, whether it should extend to aid any pro-
ceedings except such as were according to the course of the common law. (e) But this
extends not to any mistake in the christian name. Cro. Car. 202. [[See Willes, 488. 12 East,
6 Tanut. 229.460.11 (g) Stile, 216.* 2\S. jjer Ro/leC.L If the party appear by attorney,
where he ought to appear by guardian, it is error, and not helped by this statute. Danv. Abr.
2 V. tit. Error, fol. 12. pi. 13., and Roll. Abr. 1 v. 747. pi. 13. S. C, where he says the judg-
ment was reversed, because the party plaintiff appeared in person. See 2 Sand. 212, 213.
It seems the general opinion, that when the plaintifi" appears by attorney, unless it is pleaded
in abatement, it is cured after verdict for him, by the stat. 21 Jac. 1. c. 13. the words being
express. The cases in the books contra (except that in Stiles) were before the statute. ||If an
infant defendant appears by attorney the court will, at the instance of the plaintiff', compel an
amendment of the appearance by substituting a guardian. Hindmarsh v. Chandler, 7 Taunt.
488. ; and although an infant defendant against whom judgment has been given may assign for
error that he appeared by attorney, yet if judgment be given in favour of ^an infant defendant,
the plaintiff cannot avail liimsclf of the infant's appearance by attorney as a ground of error.
Bird V. Pegg, 5 Barn. & A. 4 is, [j

The main design of this statute was to help any mistake in the
jury process, but there were several things still to be supplied,
and several others to be adjudged from, which were always con-
strued to be matters of substance, and consequently not aided by

any of the former statutes: wherefore the 16 & 17 Car. 2. was l Vent. 200.
made, the act which Twisdeii called The Omnipotent Act.

By the («) 16 & 17 Car. 2. c. 8. it is enacted, "that after ^^''^' 'J^;""'r'

" verdict in any action, suit, bill or demand, in the courts of f/ct was only"*

" record at Westminster^ county palatine of Chester or Durham, forthreeyears,

" or of the great sessions in Wales, judgment thereupon shall but is made

" not be stayed or reversed for want of form or pledges, sheriff's P^'^Sf lj!!^p^"'i

" name, returned upon the original, or for want of pledges upon 2."c.4r%)But

" any bill or declaration, or for want of a ■prafert in atria of any this extcncU

" deed, or of letters testamentary, or of administration, or for not to any

** the omission of vi et armis, or contra pacem, or for the mistake ^"al >n an im-

" of the christian or surname of either party, sums, day, month ^od^sT^Tyo!

" or year, in any bill, declaration and pleading, being right in 2 Mod. 24.

" any writ, plaint, roll or record preceding, or in the same, to (c) In debt

** wjiich the plaintiff might have demurred and shewed the same }'P°" a bond
£4 r c r 7 , . -^ 7 ni London..

lor cause, or tor want or hoc paratus est verificare, or hoc para- conditioned

** tus est verif care per recardiim, or prrout patet per r''cordum ; or for the pcr-

" for that there is no right venue ; so as a trial was by a jury of formance of

" the (h) proper county or plac'^. (c) where tlie id) action is laid ; t;ovenants,onc
., L II . 1 -^ ' rt ^ 1. e ' L -, of which was

nor snail any judgment after verdict, confession by cogncnnt ^^^ jj^^ cyoy.

" actionem or relicta nerificatione, be reversed for want of a mentof^/irjifi-

*' misericordia or a capiatur, or because one is entered for the ^^dk, in the

" other ; nor for that ideo conccssum est per curiam is entered for ^'^If^jf ^^ j"

" id<io consideraium est, &c. or for that the increase of costs after the delwdant '

04 " verdict

«00 AMENDMENT AND JEOFAIL.

jieadod i)cr- " verdict in an action, or upon a nonsuit in replevin, are not
fbniiancc " entered to be at the request of the party for whom the judg-*

fjenerallyjand (c ment was ^iven, nor by reason that the costs in any judgment
re'^lied that " whatsoever, are not entered to be by consent of the plaintiff;
the Eiirl of Ji. " anJ that all such omissions, variances and defects, and (e) odier
having title by ** matters of like nature, not being against tlie right of the matter
grant, &c. en- « of the suit, nor whereby the issue or trial are altered, shall

tered, mid „ ^ amended where such judgments are or shall be removed by
outtcu nun ;.»,,*'"
find the do- " writ of error.

fendant pleaded the Earl of iV. had no title; and thereupon issue was joined, and tried by a
vune oi Skruh-walkf&nd found for the plaintiff; and though no visne could arise of the \valk,
and it could not be intended n vill, being only collaterally alleged as a thing granted, and not
as a place where any fact was done; yet being tried by a jury of the county where the matter
of the issue arose, it was adjudged for the plaintiff by three judges con. Twisden, who said it
was not within the words; and being a new law, it should not be taken according to the intent,
against the words; and after, error was brought; but the parties agreed, the defendant making
the plaintiff satisfaction. Lev. 207. Sid. 326. adjudged per totam Cur. prcster Twisden,
though objected, the action being laid in London, the issue should have been there tried, unless
•orae other place had been shewed in the record; and vide \ Lev. 122. (rf)The plaintiff
declared that the defendant apud London said of the plaintiff, that he had stolen plate at
Oxford ; and the defendant justified, that he did steal plate at Oxford, per quoad he spoke the
words at London ; and the plaintiff replied, de injurid sua propiia, &c. and thereupon issue
was joined, qlfd tried in London, and found for the plaintiff; and though it was adjudged, that
the only point in issue was, whether the felony was committed, which was triable at Oxford;
yet the plaintiff had judgment. Croft and Boite, Sand. 247, 248. by three judges, who said,
that the issue being tried by a jury of the proper county, it was within the express words of
the statute; but Twisden /or^men^ con^.; and by the reporter, this judgment was given, not
only against the opinion of Twisden, but of several others, as he was informed; and being of
counsel with the defendant, he agreed the meaning of the statute was, that the issue should be
tried in the proper county where it arises, else it would be impossible, by any plea, to remove
the trial from the county where the action is laid. Raym. 181. adjudged, that it whs helped
by the statute; but said, that the defendant might have demurred upon it. 2 Keh. 496.
adjudged, Vent. 263. cited to be adjudged; so Adderly and Wise, 2 Lev. 164, 165. adjiulgcd.
Vent. 263. cited, and vide Raym, 392. where the like point was in question, et adjorn.;
eo, 2 Jones, 82. et adjorn. And in the case of Jenning and Hunking, Vent. 263. (where the
court said it was within the words, but not the meaning of the act; for the intention was so,
that the trial was in the county where the issue did arise,) but in regard of these precedents
cited, they would not stay judgment ; but by the report of this last case, 2 Lev. 121. it does
not appear how the judgment was; but Hale C. J. there said, the meaning of the statute was,
if the issue was tried in the county where the matter thereof arose; for it is not reasonable to
believe the parliament intended to alter the whole course of trials, and to have things tried in
foreign coimties, et adjomatur ; and by the report of the same case, 3 Keb. 350. 371. 509. the
parties agreed to amend, and lay the whole matter in the county where the action was laid ;
and said, the court inclined strongly against the judgment cited, (e) Raym. 398.

Carth.66. The above statutes beuig chiefly calculated to aid imperfec-

Skin.49. pi. 3. (^iQjjg ^i^gj. verdict, and the statute 27 Eliz. c. 5. aiding defects in

form only on a general demurrer, it was thought advisable to

enlarge the authority of the courts further in favour of suitors ;

and therefore,

4 Ann. c. 16. By the 4 Ann. c. 16. for the amendment of the law, it is en-

Kote:Thi8 acted, " that where any demurrer shall be joined and entered
act is said to «{ :„ .• . ••' • ™ i i • i in

have been ^^ ^"^ action or suit m any court of record, the judges shall

]>cnnc<l by the " proceed and give judgment according as the very right of

^reat I/ord " the cause and matter in law shall appear unto them, without

fSiSiop B^r- " ^^g^'^^'^g any imperfection, omission, or defect in any writ,

net's Hist, of " ^^'""^5 plaint, declaration, or other pleading, process, or course

hisownXimes, ** ^^ proceeding whatsoever, except those only which the party

p. 459. " demurring shall specially and particulaily set down and ex-

" press^

(B) The several Statutes of Amendment and Jeofail, 201

" press together with his demurrer, as causes of the same, not-
" withstanding that such imperfection, omission, or defect might
" have heretofore been taken to be matter of substance, and
'* not aided by the 27 EHz. c. 5. so as sufficient matter appear in
" the said pleadings ; upon which the court may give judgment
" according to the very right of the cause, and no advantage or
" exception shall be taken of or for an immaterial traverse, or of
" or for the default of entering pledges upon any bill or declar-
** ation, or of or for the default of alleging the bringing into
" court any bond, bill, indenture, or other deed whatsoever.
" mentioned in the declaration or other pleading, or of or for
" the default of alleging of the bringing into court letters testa-
*' mentary or letters of administration, or of or for the omission
'* of vi et armis, et contra pacem, or either of them, or of or
" for the want of averment of hoc paratus est verijicare, or hoc
" paratus est verificare pa- recorduvi ,- but the court shall give
" judgment according to the very right of the cause, as afore-
" said, without regarding any such imperfections, omissions, and
" defects, or any other matter of like nature, except the same
" shall be specially and particularly set down and shewn for ■•

" cause of demurrer." A?id, "That all the statutes of Jeofails

" shall be extended to judgments which shall be entered upon
** confession, fii'hil (licit, or non sum informatus, in any court of
" record, and no such judgment shall be reversed, nor any
*' judgment upon any writ of enquiry of damages executed
*' thereon, be stayed or reversed for or by reason of any imper-
" lection, omission, defect, matter, or thing whatsoever, which
" would have been aided and cured by any of the said statutes
" o'i jeofails, in case a verdict of twelve men had been given in
" the said action or suit, so as there be an original writ, or bill,
** and warrants of attorney duly fded according to the law as is
" now used."

II In the construction of this statute it has been adjudged, that i Stra. 7«.
it extends to protect judgments by default, against such objec- Vandeput v,
tions only as are remedied after a verdict by the statutes of ^?r.''» ^- ^*
jeofails, and not against objections which are cured by a verdict z'-jI^Ws'
at common law. 2 Stra. 955,

Hayes v. Warren. 2 Burr. 899. Collins v. Gibbs.

It becomes, tlierefore, necessary in order to ascertain the nature Sec Cro. Car.
of the defects, which are aided after a judgment by default since ^?"' |^^{^ ^.
the statute of Anne, to distinguish with accuracy between such 'i\ llaym -is?
imperfections as are cured by a verdict by the common law, and Hitchins v.
those which are now remedied after verdict by the several Stevens,
statutes of jeofails. With respect to the former case it is to be 9f '^'^^' "^^l"
observed, that where there is any defect, imperfection, or cou^h^'lbu^'
omission in any pleadings, whe*^'ier in substance or form (a), ssgtBlackafl
which would have been a fatal objection upon demurrer ; yet if v- Eale.
the issue joined be such as necessarily required on the trial Jj^^°'^' ^^^'
proof of the facts so defectively or imperfectly stated or omitted, Heij. i j^g^
and without which it is not to be presumed that either the judge 308. Manning-
would direct the jury to give, or the jury would have given the to» v. Guil-

verdict,

202 AMENDMENT AND JEOFAIL.

Iiin«, S. C. verdict, such defect, imperfertion, or omission is cured by the
I Vent. 109. verdict by the common law; or, in the phrase often used upon
Golwic^s ^^6 occasion, such defect is not nny jeofail after verdict.
ca«c. I Salk.3G5. Crouther v. Oldficld. Com. Rep. 116. May v. King. 6 Mod. 302. Scrim-
shaw V. Wcstlcy. 2 Ld. Raym. 1060. S. C. Holt's R. 567. 3 Wils. 275. Roe v. Hersey.
7 Brown P. C. 555. Rann v. Hughes. Dougl. 679. Rushton v. Aspinall. 1 Term R. 141. 145.
Spiers V. Parker. Ibid. 545. Johnstone v. Sutton. 3 Term R. 25. Nerot v. Wallace. IIM.
147. Clark V. King. 4 Term R. 472. Bishop v. Hayward. 7 Term R, 518. 523. M'Murdo
V. Smith. Cas.temp. Hardw. 116. Wicker v. Norris, 10 East, 359. Bowdell v. Parsons. 2 Bos
& Pull. 265. Wiu-d V. Harris, (a) 13 East, 407. Higgins v. Highfield. That was an action for
mesne profits ; and the declaration did not state any time when the defendant entered, but only
that he kept the nlaintiff ejected /or a long space of time. After judgment by default, the court
held that this omission was cured by the statute 4 Ann. c. 16., ancf seemed to consider that all de-
fects'of form only were cured by that statute. The case of Blackall v. Heal, Com. Rep. 12. Carth.
389. S. C. was cited in argument, where the same omission was held to be cured after ver-
dict • but whether under the statute of jeofails, or at common law, does not appear, though
the language of the court in giving judgment seems to lean to the latter. The case in
13 East, 407. is, however, decisive upon this point.

J Show. 233, As where in debt for rent, by a bargainee of a reversion, the
234. Hitchins declaration omitted to allege the attornment of the tenant,
V.Stevens. which before the statute 4 Ann. c. 16. §9. was a necessary
1 Stra.78.^ ceremony to complete the title of the bargainee, and, upon nil
Lord S. c' debet, pleaded there was a verdict for the plaintiff, such omission
2Vin.Abr.399. was cured by the verdict by the common law; but is a fatal
(6) It should obiection after a judgment by default, since the statute of 4 Ann.
be observed, clQi2lh)
that Serjeant C. i^. ^ Z. \U)

"Williams (from whom this passage is taken) is here speaking of a conveyance of a reversion
made previous to the statute of Anne, and pleaded after that statute, the second section of
which extends the statutes of jeofails to judgments by default, and the ninth and tenth sections
of which abolish the necessity of attornment.

Hutt. 54. And this construction seems agreeable to the spirnt as well as

Lightfoot V the letter of that statute : for it is clear that, unless the tenant
Brightman, jj^^ jjj fv^pj. attomed, the plaintiff was not entitled to recover. It
Suiers v ' ^^ ^^^ alleged in the declaration that the tenant had attorned ; it
Parker. is at least as probajale that he had not attorned as that he had ;

(fl) But it and it does not appear which is the fact ; upon what ground
seems that ^i^^j^ ^^^^ ^^^ court presume any attornment ? The iudgment by
not be plead- default affords none, for that only admits such facts as ai'e
ed in any alleged. Therefore if such defects should be held to be aided

case, for after a judgment by default, it might frequently happen that the
itisaneccs- court would give judgment for the plaintiff, where he is not
stance implied entitled to recover. But where a verdict has established the
by law. Co. grant, that is a sure ground whence the court can presume
Litt. 303. b. attornment, because without proof of it the plaintiff could not

Plowd. 149. Yisae made out his title as bargainee of the reversion. So

Throckmorton , ^ _ . » , .

T. Tracey ; Where a grant 01 a reversion, a rent charge, an advowson, or

which was on any other hereditament which lies in grant, and can only be con-
demurrer to a veyed by deed, be pleaded, but is not alleged to have been by
plea in bar. ^^^^ , ^^ jj- ^ feoffment be pleaded without livery (a) ; so that

the grantee or feoffee does not shew in himself a perfect title ;

yet, if the grant or feoffment be put in issue, and found by the

jury, the verdict cures such imperfection by the common law.

But such defect is a faUil objection after a judgment by default,

for the reason ^bove given.

Also

(B) The several Statutes o^ Amendment and Jeofail, 203

Also where a promise depends upon the performance of some- 2 Burr. 899.
thing to be first done by him to whom the promise is made, p^ul*"* ^'
and in an action upon such promise the declaration does not '

aver performance by the plaintiff, or that he was ready to per-
form, and there is a verdict for the plaintiff; such omission is
cured by the verdict by the common law, but is a fatal objection
after a judgment by default, for the objection holds exactly the
same as if it had been upon demurrer.

So in an action for a malicious prosecution, it is necessary 2 Rich. 3.

to allege in the declaration that the prosecution is at an end. 9 Hob. 267.

The want of this averment is cured after verdict. But is fatal Naterer v.

upon demurrer, or after a judgment by defliult : for the original j^ ^"^"sog

prosecution may either be determined, or it may still be re- 210. Parker v.

gularly going on ; and how can the court say which of the two Langley.

is the fact ? But where there is a verdict for the plaintiff, it is f^^"- ^^''- ^^•

a necessary inference that it was proved on the trial that the T^'i

. . , •' . ^ 1 / 7 \ grave v. Uuen.

origmal prosecution was at an end. [b) Dougl. 215.

Fisher v. Bristow. 2 Term R. 225. Morgan v. Hughes. Skinner v. Gunton. 1 Sid. 15. Wine v.
Ware, {b) See also 1 Bro. & Bing. 224. Dalby v. Hirst. 9 East, 473. Amey v. Long. 5 Barn.
& Aid. 634. Pippet V. Hearn ; in which case it was held, that a count for [maliciously in-
dicting the plaintiff for perjury without setting out the indictment, is good after verdict; but
this, it should seem, is by the statutes of jeofails.

But where there was any defect, omission, or imperfection,

though in form only, in some collateral parts of the pleading,

that were not in issue between the parties, so that there was no

room to presume that the defect or omission was supplied by

proof, a verdict did not cure them by the common law. As

in the case from Croke's Reports, where the replication did

not aver that the cattle were levant a?id couchant upon the

plaintiff's land, a verdict in favour of the prescripion did not

cure this defect ; for the only point in issue was the prescriptive

right of common, and, therefore, the fact of the cattle being (a) Sec Gilb.

levant and couchant upon the plaintiff's land, or not, was not H-C.B. (3d

at all necessary to be proved before the jury. But as it was an \^^ /^g.

extremely hard case, that after a cause had been tried upon the (6) i Salk. 57.

merits, judgment should either be stayed or reversed for defects Gidley v. Wil-

in form in such collateral matters, such defects were helped ^'»™s.S.C.

after verdict by the statutes o^ jeofails, and are now after judg- 554. 4 J^od

ment by default, by virtue of the statute of Queen Anne, (a) So 133. Mason v.

where an administrator brings debt on a bond, and does not Hanson.

allege in the declaration bi^ ixihom administration was granted, \}f^^yi,^^

and defendant pleads nofi est factum, and there is a verdict for ^ j j ' jg_

the plaintiff, the verdict does not cure this defect by the common feet, whether

law, because it was not necessary to be proved on this issue, the '" form or

title of the administrator not being ip question. But this defect substance, iu

is remedied after verdict by the statute of jVo/a//5, 16 & 17 Car. 2. wi*t"^"wil is

c 8. and, therefore, after a judgment by default since the statute of cured after'

Anne. (6) Upon the same principle, a verdict did not at the com- verdict.

mon law cure other defects in form, such as the want of civiner ^'^) ^' must be
1 .... r ^1 • T .• o 1 • I ° observed, tuat

colour, misjouung of the issue, discontinuance, 8fc. which are two of the

helped after verdict by statute 32 H. 8. c. 30. nor the want of an instances

original

aoi. AMENDMENT AND JEOFAIL.

mentioned in original or judicial writ ; nor the insufficient return of the sheriff;

the text, which are remedied after verdict by the statute 18 Eliz. c. 14. ;

viz. the want j^^j. ^ variance between the original writ and declaration, which

"crfbctlorof was aided after verdict by the statute 21 Jac. 1. c. 13. ; nor did a

an original verdict cure any immaterial traverse, the omission of a jnofert,

writ, are ex- of vi et annis, of contra pacrm, of hoc paraius est va'ificare^ of

presslyex- prout patet per rccordum, all which defects, with many others,

Sutl of are helped after verdict by the statute 16 & 17 Car. 2. c. 8. (c);

Anne, the and the benefits of these statutes is extended to judgments by

words of default by the statute of Arme. [d) But still if the plaintiif

which are, either states a defective title, or totally omits to state any title or

1 ^n^riui^iml cause of action, a verdict will not cure such defect, either by

writ or bill, the common law or by the statutes oi jeofails ; for the plaintilf

and warrant of need not prove more]than what is expressly stated in the declar-

attorney duly ajjop q^ jg necessarily implied from those facts which are
fded according ', ,. •'

to the law as stated, {e)

is now used.'* See 1 Saund. 318. a. ; and 2 Saund. 101. r. (e) Doug. 658. Rushton v.
Aspinall, Cowp. 825. 2 Salk. 6G2. Buxendin v. Siiarp, 1 Salk. 365. Crouther v. Oldfield,
.•> Burr. 1728. Weston v. Mason, per Fa/<?5, J. 3 Wils. 275. 1 Term R. 141. 146. Spieres v.
Parker, 4 Term R. 472. Bishop v. Hayward, Gilb. H. C. B. 141, 142. So, where in an action
on the case for an injury to the plaintiff's reversion in a yard, the declaration stated injuries
in terms which most aptly applied to the possession only, and there was no allegation that
the plaintiff had been injured in his reversionary estate in the premises, the court, after verdict
for the plaintiff, held, that the omission was not cured, and judgment was arrested. 1 Maule
6c S. 234. Jackson v. Pesked. So in debt on 2 & 3 Ed. 6. c. 1. for not setting out tythes, an
omission to state that the tythes had been payable within forty years next before the act, was
held fatal after verdict for the plaintiff. 4 Barn. & Aid. 655. Butt v. Howard. The distinction
is one which has been often remarked between a defective statement of a title or cause of
action, and a statement oi a defective title or cause of action. The former is cured by
verdict, or by the statute of jeofails ; the latter is not.

The King v. Notwithstanding it is, as we have seen, so material to dis-

^'ffT^ * tinguish between defects helped after verdict by the common
looc. ^^^ ^"'^ ^y ^^ statutes o'^ jeofails, in order to apply them to

cases of judgments by default, yet we very often find that there
is no sort of distinction made between the two cases by many of
our reporters and wi'iters upon the subject. In a qmire impedit^
the declaration alleged a seisin in the crown of the advowson,
but no presentation. The seisin was traversed, and a verdict
thereon for the crown. The question was, whether the want
of alleging a presentation was cured by the verdict. The conrt
was of opinion it was ; but Lord Hard'wicke is made to say that
it was so cured, by virtue of the 16 & 17 Car. 2. c. 8. But it
should seem that the report is inaccurate, because from the
whole of Lord Hard'jcicke's argument, it is plain that the ground
upon which the court gave their opinion was, that a presentation
must of necessity have been proved upon the trial, otherwise the
jury could not have found a seisin in the crown ; which is the prin-
ciple upon which the defects are held to be cured by a verdict by
the common law. And in this light is the case considered in the
Black. Com. ^^^ °^ ^"^ Prius, 122. So, Sir William Blackstone in his Com-
394, 595. mentaries states with correctness the principle upon which defects

Sec 1 Will. are held to be aided by a verdict by the common law ; but the two
Saund. 227. ct examples which he adduces to illustrate the principle, are both of

them

them instances of defect, aided after verdict by the statutes of 'cq. notis, (5th

jeofails.W ^'^'•^'

Notwithstanding the great enlargement of the power of the Carth. 158.
judges, by the above recited statutes in amending writs, pro- 367. 520, Ld.
cesses, Sfc. yet none of them were thought to extend to writs of I 4"^^ vr \^^*
error ; and the rather, because such amendment would not be in ig.gg. Comb,
affirmance of the judgment ; but it being found that defective 554, Salk. 49.
writs of error occasioned great delay of justice. pl* 9-

By the 5 G. 1. c. 13. it is enacted, "that all writs of error 5G, i.e. is.
" wherein there shall be any variance from the original record, ||See Tidd's
" or other defect, may and shall be amended and made agree- ^'•'«<^- ip^s.
" able to such record, by the respective courts where such writ ^ edit.)||
" or writs of error shall be made returnable ; and that where
" any verdict hath been or shall be given in any action, suit,
" bill, plaint, or demand, in any of his majesty's courts of
" record, the judgment thereupon shall not be stayed or reversed
" for any defect or fault, either in form or substance, in any bill,
" writ, original cr judicial, or for any variance in such writs
" from the declaration or other proceedings."

[By Stat, of 4 G. 2. c. 26. for turning all law proceedings into 4G. 2. c. 2G.
English^ it is provided, § 4. that every statute o^ jeofails shall ex- ^ **
tend to all forms and proceedings in Eiiglish (except in criminal
cases), and that this clause shall be taken and construed in the
most ample and beneficial manner for the ease and benefit of the
parties, and to prevent frivolous and vexatious delays.]

II As to amendments of the record under Lord Tciiterden^s ^Ua-A.£^^

act, 9 G.4. c. 15., see tit. " Pleas and Pleading," (B)3., and „ . ,

3 Carr. & P. Ca. 485. 394. (4 id.) 22. 24. || ^'^ 4 4^,

^/«^^ V

TT has been a great question whether any of these statutes ex- Gilb. Hist.

tend to the case of the king, either to remedy the party where C.P. 116. Vule

lie has prevailed against the king, or the king against the party; J^Mod"? 'ig7*

but as it has been ruled in both cases, and seems now established Pitzf'ib. 5g.

that these statutes do not extend to the king, it will be needless 122. 263. Stra.

to enter minutely into this enquiry; for though only indictments, ^^^^"^- ^^^•

appeals, and informations on penal statutes are excepted in all m , ^f-^'
a\ ^ ^ c ^rT„ ,^'- 1 1/. " I renal actions

the st^itutes irom 8 H. 6. c. 12. yet because the first statute says are not consi-

it shall be amended on the challenge of the party, in which the dered as crimi-
king cannot be included, the subsequent statutes are supposed to P^^ proceed-
be made on the same platform ; and that this exception is only Ibfe'wIth^inTlie
ex ahundanti cauteld. statutes of

jeofails. Cowp. 382. i Wils. 125.

Thus in a quo laarranio quare the defendant claims a warren, Jones, 320.
the defendant prescribes for a warren within the manor oiRidge^ ^'■<'- C"*"- ^^2.
and the venire was awarded from the villa of liidge^ and not from
the manor of liidgCy and a verdict for the defendant ; the court

awarded

206 AMENDMENT AND JEOFAIL.

(fl)F«fcStat. awarded a new venire {a)^ because they held the king was not
9 Ann. c. 20. within the statute of J. 1 . c. 1 3.

& 7. [The venire i /-<

18 now to be awarded of the body of the county, vide the stat. 4 Ann. c. 16. § 6., and 24 Cr. 2.
c. 18. § 3. Vide head of Juries.]

Salk.5i.pl. 14. So in an information for a seditious libel, the venire was re-
6 Mod. 268. turnable 1 3 October^ and the distringas tested 2-t October^ this was
R ^' ^lon^ ^ discontinuance, because not returned in the presence of the
1472"* Mich, party ; and notwithstanding the queen had a verdict, the court
3 Ann. The would not amend it, though such amendment would have been
Queen v. warranted by the roll, where the distringas was well awai'ded.

Tuchin, by
three judges, lieiitante Gould.

But it has been adjudged, that the several provisoes in these
Cro. Jac.4H, statutes, which except appeals and indictments of felony, ^x.
307 ^2 Sand.*'' ^"^ ^^^^ ^^^^X ^^^^^ not extend to any writ, bill, action or inform-
ass! (A) But a ation upon any popular or penal statute, do not {b) extend to
writ of ravish- those cases in which a remedy is given by way of recompence to
ment of ward ^ party ; as upon the statute of waste, for not setting forth ty the,
upon the sta- c -xJ ,. q
tute of Wcstm. forcible entry, 8,x.
2. c. 35. is within the proviso. Dr. Hussy and Moor, 5 Bulst. 275, 276. Hob. 101.

[4 Ann. c. 16. Also by the 4 Ann. c. 16. for amendment of the law, it is
(c) An inform- enacted, *« that all the statutes oi jeofails shall extend to all
U "t"teaTwere' " ^"^^^ "^ ^"^ °^ ^^^^ majesty's courts of record at Westminster,
imported be- " for recovery of any debt immediately owing, or any revenue
tween,&c. and « belonging to her majesty, her heirs or successors, and shall

the day of ex- <c also extend to all other courts of record." (c)
hibitmg the m-

formation, which was the day of the seizure, and of course would have been excluded : leave was
therefore given to amend, by extending it to the next day. Bunb. 49. p. 80. An information
on the act of navigation was amended, by substituting the words India goods instead o( silks; but
the addition of other goods was not allowed, for that would have been to have made a new
information. Id. 252. p. 327. In one case an amendment was permitted, which made quite
a new offence ; this was in an information of seizure for importing brandy and rum in casks
under sixti/ gallons, by making it, as to the rum in casks, under twenty gallons. Id. 334.
p. 415. But where an indenture of appraisement was dated before the writ of appraisement,
the court inclined to think it might be amended. Id. 58. p. 99.]

9Ann.c.2o.$7. And by the 9 Ann. c. 20. §7. it is enacted, "that the

Ft^it. In- (i statute for the amendment of the law, and all the statutes of

•' ' " Jeofails shall be extended to [all writs of mandamus and] in-

" formations in nature of a quo nxiarranto, and proceedings there-

" on for any the matters in the said act mentioned."
See3Carr.& ||By 9 G. 4". c. 15. Lord Tenterden^s act, the record may be
^'r^ ^A*"p ^"^^"ded on which any trial is pending, in any indictment or
Ca. 22. 24. 79 i^foi'Kiation for misdemeanor, when any variance shall a

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